| People v Rivera |
| 2009 NY Slip Op 01824 [60 AD3d 788] |
| March 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlexRivera, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisnerof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.),rendered September 16, 2003, convicting him of robbery in the first degree (three counts),criminal possession of a weapon in the third degree, burglary in the first degree, burglary in thethird degree, petit larceny, and unlawful imprisonment in the second degree (three counts), upona jury verdict, and sentencing him to consecutive terms of 25 years to life imprisonment on eachof the three counts of robbery in the first degree, to run concurrently with the terms of 25 yearsto life imprisonment on the convictions of criminal possession of a weapon in the third degree,burglary in the first degree, and burglary in the third degree, and determinate terms of one yearimprisonment on the convictions of petit larceny and unlawful imprisonment in the seconddegree (three counts). The appeal brings up for review the denial, after a hearing, of that branchof the defendant's omnibus motion which was to suppress evidence.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, (1) by vacating the sentence imposed on the count of burglary in the third degree, and(2) by providing that the remaining sentences imposed shall run concurrently with each other; asso modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, KingsCounty, for resentencing on the count of burglary in the third degree in accordance with PenalLaw § 70.10 (2), with that sentence to run concurrently with the sentences imposed on theremaining counts.[*2]
The defendant's challenge to the legal sufficiency of theevidence supporting his convictions of robbery in the first degree (three counts) and burglary inthe first degree is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492-493 [2008]; People v Finger, 95 NY2d 894, 895 [2000]; People v Gray, 86NY2d 10, 19-21 [1995]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The trial court did not improvidently exercise its discretion in refusing to accept a partialverdict (see People v Salemmo, 38 NY2d 357, 361 [1976]; People v Abreu, 184AD2d 707, 710 [1992]; see also People v Wincelowicz, 258 AD2d 602, 603 [1999];People v Greenfield, 70 AD2d 662, 663 [1979]).
That branch of the defendant's omnibus motion which was to suppress physical evidence wasproperly denied. The "credibility determinations of a hearing court are accorded great deferenceon appeal, and will not be disturbed unless clearly unsupported by the record" (People vParker, 306 AD2d 543, 543 [2003]). The record supports the hearing court's finding that thesubject police officer was given a description of two robbery suspects and the suspected locationof those suspects; that the officer observed a vehicle parked in front of a fire hydrant in front ofthat location, a bodega which, he was informed, may have been recently burglarized by the sametwo suspects; that he saw clear plastic boxes of lottery tickets and packs of cigarettes in plainview upon shining his flashlight into the vehicle from outside; and that the occupants of thevehicle matched the descriptions of the aforementioned robbery suspects (see People v Scarborough, 31 AD3d301, 302 [2006]; People vEdwards, 29 AD3d 818, 818-819 [2006]; see also People v Semanek, 30 AD3d 547, 548 [2006]). Moreover,the defendant, who was a passenger in the vehicle, lacked standing to contest the search of thelawfully-stopped vehicle (see People vGarcia, 39 AD3d 666, 667 [2007]; People v Ballard, 16 AD3d 697, 698 [2005]; People vCooper, 241 AD2d 553, 554 [1997]).
The defendant was properly adjudicated a persistent violent felony offender on theconvictions of robbery in the first degree (three counts), criminal possession of a weapon in thethird degree, and burglary in the first degree (see People v Boutte, 304 AD2d 307, 308[2003]; People v Harris, 199 AD2d 102, 103 [1993]; cf. People v Harris, 61NY2d 9, 20 [1983]).
However, the Supreme Court erred in failing to comply with the procedural requirements ofPenal Law § 70.10 (2) when sentencing the defendant as a persistent felony offender onthe count of burglary in the third degree. Under the Penal Law, a persistent felony offender is aperson convicted of a felony after having previously been convicted of two or more felonies,where the prior felonies resulted, inter alia, in a sentence of imprisonment in excess of one year(see Penal Law § 70.10 [1]; People v Bazemore, 52 AD3d 727 [2008]; People v Murdaugh, 38 AD3d918, 919 [2007]). The statute further authorizes a court to sentence a persistent felonyoffender as if the crime constituted an A-I felony, thereby permitting an indeterminate sentencewith a maximum term of life imprisonment, when the court "is of the opinion that the history andcharacter of the defendant and the nature and circumstances of his criminal conduct indicate thatextended incarceration and life-time supervision will best serve the public interest" (Penal Law§ 70.10 [2]; see People v Bazemore, 52 AD3d [*3]727 [2008]; People v Murdaugh, 38 AD3d at 919). In suchcases, "the reasons for the court's opinion shall be set forth in the record" (Penal Law §70.10 [2]; see People v Bazemore,52 AD3d 727 [2008]; People v Murdaugh, 38 AD3d at 919-920). Since the SupremeCourt "fail[ed] to set forth, on the record, the reasons why it was 'of the opinion that the historyand character of the defendant and the nature and circumstances of his criminal conductindicate[d] that extended incarceration and life-time supervision [would] best serve the publicinterest' " (People v Murdaugh, 38 AD3d at 920, quoting Penal Law § 70.10 [2]),the sentence on the count of burglary in the third degree must be vacated and the matter remittedto the Supreme Court, Kings County, for resentencing in compliance with Penal Law §70.10 (2) and CPL 400.20 (7).
Moreover, while there was no legal impediment to the imposition of consecutive terms ofimprisonment for the defendant's convictions of three counts of robbery in the first degreebecause the subject robberies were predicated upon distinct acts committed against separatevictims (see People v Ramirez, 89 NY2d 444, 454 [1996]; People v Brown, 80NY2d 361, 364-365 [1992]; People v Brathwaite, 63 NY2d 839, 843 [1984]; People v Blount, 47 AD3d 825[2008]; People v Smith, 46 AD3d583 [2007]), the sentence imposed was excessive to the extent indicated herein. Mastro, J.P.,Skelos, Balkin and Chambers, JJ., concur.