| People v Ferraro |
| 2008 NY Slip Op 01963 [49 AD3d 550] |
| March 4, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Daniel Ferraro, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel; RachelKupferman on the brief), for respondent.
Appeals by the defendant from (1) a judgment of the County Court, Suffolk County(Gazzillo, J.), rendered January 31, 2005, convicting him of burglary in the third degree underindictment No. 680-04, upon a jury verdict, and imposing sentence, and (2) a judgment of thesame court, also rendered January 31, 2005, convicting him of bail jumping in the first degreeunder indictment No. 2813-04, upon his plea of guilty, and imposing sentence.
Ordered that the judgment rendered under indictment No. 2813-04 is reversed, on the law,the plea is vacated, and the matter is remitted to the County Court, Suffolk County, for furtherproceedings on the indictment; and it is further,
Ordered that the judgment rendered under indictment No. 680-04 is affirmed.
The defendant contends that indictment No. 2813-04 erroneously charged him with bailjumping in the first degree (Penal Law § 215.57), when it should have charged him withbail jumping in the second degree (Penal Law § 215.56). The defendant pleaded guilty tothe higher offense. Although he did not move to withdraw his guilty plea or to vacate hisjudgment of conviction in the County Court, during his plea allocution, the defendant's factualrecitation negated an essential element of bail jumping in the first degree. Thus, under thecircumstances, this case presents an exception to the preservation requirement (see People vLopez, 71 NY2d 662, 665-666 [1988]; People v Rodriguez, 14 AD3d 719 [2005]; People v Martin, 7 AD3d 640[2004]). The People have correctly conceded that an error was made. Accordingly, the judgmentrendered on indictment No. 2813-04, [*2]must be reversed, theplea vacated, and the matter remitted to the County Court, Suffolk County, for furtherproceedings on the indictment.
The defendant's challenge to the legal sufficiency of the evidence under indictment No.680-04 is unpreserved for appellate review, since defense counsel made only a general motion todismiss that indictment and did not elaborate with specific facts or grounds the basis fordismissal (see CPL 470.05 [2]; People v Finger, 95 NY2d 894, 895 [2000];People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt of burglary in the third degree beyond areasonable doubt. Moreover, upon the exercise of our factual review power (see CPL470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that certain comments made by the prosecutor during summationwere improper is unpreserved for appellate review because he failed to object to those commentsat trial (see CPL 470.05 [2]; People v Glover, 11 AD3d 478 [2004]; People v Woody, 9 AD3d 439[2004]; People v George, 2 AD3d457 [2003]). In any event, the challenged remarks either were responsive to the defendant'ssummation (see People v Thomas, 186 AD2d 602 [1992]), were ameliorated by thecourt's instructions, or constituted harmless error (see People v Crimmins, 36 NY2d 230[1975]).
Furthermore, the defendant's failure either to request specific instructions with regard to ajury charge or to timely object to the charge as given renders his claim that he was denied theright to a fair trial due to the court's instructions unpreserved for appellate review (seeCPL 470.05 [2]; People v Williams,38 AD3d 925 [2007]). In any event, the jury instructions regarding burglary in the thirddegree, when read as a whole, fairly instructed the jury on the correct principles of law to beapplied to the case (see People v Bracey, 249 AD2d 319 [1998]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Mastro, J.P., Florio, Miller andDickerson, JJ., concur.