| People v Williams |
| 2008 NY Slip Op 01584 [48 AD3d 715] |
| February 19, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Williams, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas S. Burkaof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg,J.), rendered July 30, 2003, convicting him of robbery in the first degree, robbery in the seconddegree, and grand larceny in the second degree, upon a jury verdict, and sentencing him, as asecond violent felony offender, to a determinate term of 18 years' imprisonment on theconviction of robbery in the first degree, a determinate term of 15 years' imprisonment on theconviction of robbery in the second degree, and an indeterminate term of 5 to 15 years'imprisonment on the conviction of grand larceny in the second degree.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the sentence imposed; as so modified, the judgment is affirmed and thematter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
The trial court did not err in denying the defendant's motion to sever his trial from that of oneof his codefendants (see People v Cardwell, 78 NY2d 996 [1991]; People vMahboubian, 74 NY2d 174, 183 [1989]). Contrary to the defendant's contention, the recorddoes not reveal an irreconcilable conflict between his defense and his codefendant's defense suchthat the conflict alone would have led the jury to infer the defendant's guilt (see People vMahboubian, 74 NY2d 174 [1989]; People v Hernandez, 260 AD2d 399, 400[1999]).
The defendant's argument regarding alleged improper comments by the prosecution duringsummation is unpreserved for appellate review (see CPL 470.05 [2]; People v Tonge,93 NY2d 838 [1999]; [*2]People v Dien, 77 NY2d885 [1991]). In any event, the challenged comments were either responsive to the argumentsmade in the defense counsel's summation (see People v Galloway, 54 NY2d 396 [1981]),or fair comment on the evidence (seePeople v Johnson, 3 AD3d 581 [2004]; People v Adamo, 309 AD2d 808[2003]).
The defendant contends that he was improperly sentenced as a second violent felony offenderbecause the sentence on his predicate violent felony conviction was imposed more than 10 yearsbefore the commission of the instant offense (see Penal Law § 70.04 [1] [b] [iv]),and the prosecution failed to meet its burden of showing that the 10-year period was tolled byother periods of incarceration (see Penal Law § 70.04 [1] [b] [v]). Specifically, thedefendant argues that a 212-day period should not have been used to toll the 10-year period,because he was incarcerated during that time for a crime of which he was ultimately acquitted(see People v Dozier, 78 NY2d 242, 250 [1991]; People v Beard, 143 AD2d 101,102 [1988]). According to the defendant, the prosecution failed to explain how those "212 dayswere apportioned between the assault on an inmate versus the crime for which [the defendant]had been acquitted." As the People correctly concede, the record on this point is incomplete.Thus, although this contention is unpreserved for appellate review (see CPL 470.05 [2];People v Proctor, 79 NY2d 992 [1992]; People v Cruz, 28 AD3d 675 [2006]; People v Csoke, 11 AD3d 631[2004]; People v Alston, 289 AD2d 339 [2001]), we reach it in the exercise of ourinterest of justice jurisdiction (seePeople v Murdaugh, 38 AD3d 918, 919 [2007]). Since the record reveals that thedefendant's adjudication as a second violent felony offender may have been improper, we remitthe matter to the Supreme Court, Kings County, for a hearing on this issue and for resentencingthereafter.
The defendant's remaining contentions are without merit. Mastro, J.P., Skelos, Florio andDickerson, JJ., concur.