| People v Greene |
| 2008 NY Slip Op 10636 [57 AD3d 1004] |
| December 30, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TarikGreene, Appellant. |
—[*1] Thomas P. Zugibe, District Attorney, New City, N.Y. (Carrie A. Ciganek of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik,J.), rendered September 25, 2003, convicting him of criminal possession of a forged instrumentin the second degree and attempted grand larceny in the fourth degree, upon a jury verdict, andsentencing him, as a persistent felony offender, to an indeterminate term of imprisonment of 15years to life for criminal possession of a forged instrument in the second degree and adeterminate term of imprisonment of one year for attempted grand larceny in the fourth degree.
Ordered that the judgment is modified, on the facts and as a matter of discretion in theinterest of justice, by vacating the defendant's adjudication as a persistent felony offender,adjudicating him a second felony offender, and reducing his term of imprisonment for criminalpossession of a forged instrument in the second degree from an indeterminate term ofimprisonment of 15 years to life to an indeterminate term of imprisonment of 3½ to 7years; as so modified, the judgment is affirmed.[*2]
The trial court providently exercised its discretion indenying, without a hearing, the defendant's pro se motion pursuant to CPL 330.30 to set aside theverdict after investigating the defendant's claim and ascertaining that it was baseless (seePeople v Rodriguez, 100 NY2d 30 [2003]; People v Rodriguez, 71 NY2d 214, 218 n1 [1988]; People v Eley, 31 AD3d 662 [2006]).
The defendant's contention that his right to equal protection was violated because he wascharged with criminal possession of a forged instrument in the second degree (see PenalLaw § 170.25), rather than criminal possession of a forged instrument in the third degree(see Penal Law § 170.20) is without merit. The law "provides the prosecutor withbroad discretion to decide what crimes to charge" (People v Urbaez, 10 NY3d 773, 775[2008]) and "overlapping" criminal statutes do not violate the defendant's constitutional rights(People v Eboli, 34 NY2d 281, 287 [1974]). Here, the "forged instrument" that thedefendant allegedly possessed was a forged American Express credit card. Thus, the defendant'spossession of the card fell squarely within the conduct proscribed by Penal Law § 170.25.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15 (5),we are satisfied that the verdict of guilt was not against the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's claim that his waiver of his right to be present at conferences between thetrial court and individual jurors during the voir dire was ineffective is without merit (seePeople v Edwards, 288 AD2d 320 [2001]; People v Broadwater, 248 AD2d 719[1998]). His objections to portions of the trial court's instructions to the jury are unpreserved forappellate review (see CPL 470.05 [2]), and we decline to review them in the exercise ofour interest of justice jurisdiction.
To the extent the defendant claims that his trial counsel was ineffective, the recorddemonstrates that he was afforded meaningful representation (see People v Benevento,91 NY2d 708, 712 [1998]; People v Jogie, 51 AD3d 1038, 1039 [2008]).
The defendant's contention that the sentencing procedure adjudicating him a persistent felonyoffender whose "history and character . . . and the nature and circumstances of hiscriminal conduct" warrant extended incarceration and where "life-time supervision [of thedefendant] will best serve the public interest" (Penal Law § 70.10 [2]) wasunconstitutional, is unpreserved for appellate review and, in any event, is without merit (seePeople v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]).
However, the totality of the evidence adduced at the persistent felony offender hearing,although warranting the defendant's adjudication as a second felony offender, did not warrant hisadjudication as a persistent felony offender (see Penal Law § 70.10 [2]).Accordingly, we reduce the sentence for criminal possession of a forged instrument in the seconddegree—a class D felony—to an indeterminate term of imprisonment of 3½ to7 years, which is the maximum permissible sentence for a second felony offender convicted ofthat crime (see Penal Law § 70.06 [3] [d]; People v Williams, 239 AD2d269 [1997]). Santucci, J.P., Dillon, Dickerson and Chambers, JJ., concur.