| People v Coleman |
| 2011 NY Slip Op 02170 [82 AD3d 1593] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Richard L.Coleman, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), renderedNovember 12, 2009. The judgment convicted defendant, upon a jury verdict, of robbery in thefirst degree, burglary in the first degree, burglary in the second degree, criminal possession of aweapon in the third degree, resisting arrest and grand larceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of burglary in the second degree and dismissing countthree of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant was previously convicted upon his plea of guilty of burglary in thefirst degree (Penal Law § 140.30 [2]), resisting arrest (§ 205.30) and grand larcenyin the third degree (§ 155.35 [1]) in satisfaction of an indictment charging him with thosecrimes and with robbery in the first degree (§ 160.15 [3]), burglary in the second degree(§ 140.25 [2]) and criminal possession of a weapon in the third degree (§ 265.02[1]). Defendant was sentenced as a second felony offender to concurrent terms of imprisonment,the greatest of which was a determinate term of 18 years. This Court affirmed that judgment ofconviction on appeal (People vColeman, 13 AD3d 1234 [2004], lv denied 4 NY3d 829 [2005]). County Court(Leone, J.) thereafter granted defendant's motion to vacate the judgment of conviction pursuant toCPL 440.10, and this Court affirmed the order granting defendant's motion based on the failureof County Court (Corning, J.) to advise him, prior to the entry of the plea, that he would besubject to a period of postrelease supervision (People v Coleman, 61 AD3d 1383 [2009]).
Defendant now appeals from a judgment convicting him following a jury trial of the sixcounts in the indictment and sentencing him, inter alia, as a persistent felony offender toconcurrent indeterminate terms of imprisonment of 18 years to life on each felony count. Wereject the contentions of defendant that the persistent felony offender sentencing scheme isunconstitutional (see Portalatin v Graham, 624 F3d 69, 93-94 [2010]), that County Court(Leone, J.) sentenced him as a persistent felony offender for exercising his right to a jury trial andthus that such sentencing was vindictive (see People v Miller, 65 NY2d 502, 507-508[1985], cert denied 474 US 951 [1985]; see generally People v Young, 94 NY2d171, 177-180 [1999], rearg denied 94 NY2d 876 [2000]), and that his sentence is undulyharsh and severe. Also contrary to defendant's contention, the evidence, viewed in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is [*2]legally sufficient to establish defendant's identity as the perpetratorof the crimes (see People v Jackson,78 AD3d 1685 [2010]), and to establish that the board wielded by defendant constituted adangerous instrument within the meaning of Penal Law § 10.00 (13) (see Matter of Shakiea B., 53 AD3d1057, 1059 [2008]). We reject the contention of defendant that reversal is required basedupon the procedure employed by the court after receiving a note from the jury that expressedconcern about defendant's notetaking during jury selection but contained no substantive inquiryby the jurors (see People v Ochoa,14 NY3d 180, 187-188 [2010]; People v Gruyair, 75 AD3d 401, 402-403 [2010], lv denied15 NY3d 852 [2010]). Contrary to the further contention of defendant, he was not denied hisstatutory right to a speedy trial (see CPL 30.30). The People established that they timelyannounced readiness for trial following their unsuccessful appeal of the order grantingdefendant's CPL 440.10 motion (see CPL 30.30 [5] [a]; see generally People vContrearas, 227 AD2d 907, 908 [1996]). Defendant failed to preserve for our review hiscontention that the court erred in denying his challenge for cause to a prospective juror inasmuchas he did not exhaust his peremptory challenges prior to the completion of jury selection (see People v Walter, 34 AD3d1259, 1260 [2006], lv denied 8 NY3d 850 [2007]).
As the People correctly concede, however, count three of the indictment, charging defendantwith burglary in the second degree, must be dismissed as a lesser inclusory concurrent count ofcount two, charging defendant with burglary in the first degree (see People v Skinner,211 AD2d 979, 980 [1995], lv denied 86 NY2d 741 [1995]; People v Gloss, 83AD2d 782 [1981]). We therefore modify the judgment accordingly. We have considereddefendant's remaining contentions and conclude that none warrants reversal of the judgment orfurther modification thereof. Present—Centra, J.P., Carni, Lindley, Green and Gorski, JJ.