| People v Wells |
| 2009 NY Slip Op 05158 [63 AD3d 967] |
| June 16, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PeterWells, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Howard McCallum of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered January 23, 2007, convicting him of burglary in the first degree, burglary in the seconddegree (two counts), robbery in the first degree, robbery in the third degree, and grand larceny inthe fourth degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings upfor review the denial, after a hearing (Blumenfeld, J.), of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is modified, on the law, by vacating the convictions of burglary inthe second degree and robbery in the third degree under counts three and five of the indictment,respectively, vacating the sentences imposed thereon, and dismissing those counts of theindictment; as so modified, the judgment is affirmed.
The hearing court providently exercised its discretion in denying the defendant's request tocall the complainants as witnesses at his suppression hearing (see People v Abrew, 95NY2d 806, 808 [2000]; People v Taylor, 80 NY2d 1, 15 [1992]).
Contrary to the defendant's contention, the trial court did not err in discharging a sworn jurorwho, prior to empanelment, expressed concerns about his ability to concentrate on the trial dueto job-related commitments (see People v Daniels, 59 AD3d 730 [2009]; People vHuntley, 237 AD2d 533, 534 [1997]; People v Oyewole, 220 AD2d 624 [1995];People v Adams, 179 AD2d 764, 765 [1992]; People v Vasquez, 141 AD2d 880,881 [1988]).
Additionally, the trial court properly determined that the defendant was not entitled to acharge on the affirmative defense to robbery in the first degree and burglary in the first degree.Such a charge is warranted "when there is presented sufficient evidence for the jury to find by apreponderance of the evidence that the elements of the defense are satisfied, i.e., that the objectdisplayed was not a loaded weapon capable of producing death or other serious physical injury"(People v Gilliard, 72 NY2d 877, 878 [1988]). Here, no such evidence was presented tothe jury (see People v Smith, 220 AD2d 547 [1995]).[*2]
We agree, however, that the defendant's convictions forburglary in the second degree and robbery in the third degree (counts three and five of theindictment, respectively) should be vacated because they are inclusory concurrent counts of theburglary in the first degree and robbery in the first degree counts (see People v Grier, 37NY2d 847, 848 [1975]; People v Alston, 42 AD3d 468, 470 [2007]; People vFlorentino, 196 AD2d 881, 882 [1993]).
The trial court also properly denied the defendant's request to submit criminal trespass in thesecond degree as a lesser-included offense of burglary in the second degree, since there was noreasonable view of the evidence that could lead to the conclusion that the defendant had aninnocent reason for his presence in the complainant's home (see People v Rickett, 94NY2d 929, 930 [2000]; People v Mendez, 51 AD3d 948, 949 [2008]; People vLeCorps, 19 AD3d 216, 217 [2005]; People v Arthur, 16 AD3d 592, 593 [2005];People v Brown, 270 AD2d 495 [2000]).
The defendant's contentions that his adjudication as a persistent felony offender (seePenal Law § 70.10) and persistent violent felony offender (see Penal Law §70.08) violated the principles announced in Apprendi v New Jersey (530 US 466 [2000])are unpreserved for appellate review (see People v Black, 23 AD3d 490 [2005];People v Highsmith, 21 AD3d 1037, 1038 [2005]), and in any event, are without merit(see People v Quinones, 12 NY3d 116 [2009]).
The defendant's challenge to the legal sufficiency of the evidence is similarly unpreservedfor appellate review (see People v Hawkins, 11 NY3d 484 [2008]; CPL 470.05 [2]). Inany event, viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conductan independent review of the weight of the evidence (see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7NY3d 633 [2006]). Any inconsistencies with respect to a complainant's testimony were minorand did not render her testimony incredible (see People v Sepulveda, 59 AD3d 641[2009]; People v Schouenborg, 42 AD3d 473 [2007]; People v Fields, 28 AD3d789 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions, including those raised in his supplemental pro sebrief, are without merit. Skelos, J.P., Santucci, Belen and Chambers, JJ., concur.