| People v Becoats |
| 2010 NY Slip Op 02620 [71 AD3d 1578] |
| March 26, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Corey E.Becoats, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered October 11, 2005. The judgment convicted defendant, upon a jury verdict, of murder inthe second degree and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the conviction of murder in the second degree (Penal Law § 125.25 [2]) tomanslaughter in the second degree (§ 125.15 [1]) and vacating the sentence imposed oncount two of the indictment and by vacating the sentence imposed on count four of theindictment and as modified the judgment is affirmed, and the matter is remitted to SupremeCourt, Monroe County, for sentencing on the conviction of manslaughter in the second degreeand for resentencing on the conviction of robbery in the first degree.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofmurder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]) androbbery in the first degree (§ 160.15 [1]). For the same reasons as those set forth in ourdecision in People v Wright (63 AD3d 1700 [2009]), the appeal by defendant'scodefendant, we conclude that defendant's contention that the evidence is legally insufficient tosupport the conviction of murder in the second degree is preserved for our review and that it hasmerit (id. at 1701-1702). We therefore modify the judgment by reducing the convictionof murder in the second degree to manslaughter in the second degree (Penal Law § 125.15[1]) and vacating the sentence imposed on count two of the indictment (see CPL 470.15[2] [a]), and we remit the matter to Supreme Court for sentencing on the conviction ofmanslaughter in the second degree (see CPL 470.20 [4]).
Defendant failed to preserve for our review his contention that the evidence presented to thegrand jury was legally insufficient on the element of depraved indifference and that theprosecutor erred in charging the grand jury with respect to that element (cf. CPL 210.30[6]), inasmuch as he failed to set forth those specific grounds in his general motion to dismiss theindictment (see People v Agee, 57 AD3d 1486, 1486-1487 [2008], lv denied 12NY3d 813 [2009]). Defendant also failed to preserve for our review his contention that therobbery count is duplicitous because [*2]he was charged withstealing "a BB gun and/or a pair of sneakers" and, in any event, we conclude that defendant'scontention is without merit for the same reasons as those set forth in our decision inWright (63 AD3d at 1702). Furthermore, as in Wright, the record does not reflectwhether Supreme Court resentenced defendant on the robbery count after properly determiningthat a determinate sentence must be imposed rather than the indeterminate sentence originallyimposed by the court. We therefore further modify the judgment by vacating the sentenceimposed on count four of the indictment, and we direct Supreme Court upon remittal toresentence defendant on the conviction of robbery in the first degree.
We reject the contention of defendant that the court abused its discretion in refusing to granthim an adjournment to secure the attendance of a defense witness who was in federal custody,inasmuch as he failed to establish that the witness would be available to testify at a later date(see People v Jackson, 41 AD3d 498, 498-499 [2007], lv denied 9 NY3d 876[2007]; see generally People v Foy, 32 NY2d 473, 476-477 [1973]). We have revieweddefendant's remaining contentions and conclude that they are without merit.Present—Scudder, P.J., Peradotto, Lindley and Gorski, JJ.