| People v Wright |
| 2011 NY Slip Op 04954 [85 AD3d 1642] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Dwayne D.Wright, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered July17, 2008. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree(three counts), robbery in the second degree and criminal possession of a weapon in the thirddegree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of robbery in the second degree under count four ofthe indictment and dismissing that count and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofthree counts of robbery in the first degree (Penal Law § 160.15 [2]-[4]) and one count eachof robbery in the second degree (§ 160.10 [2] [b]) and criminal possession of a weapon inthe third degree (§ 265.02 [1]). Defendant failed to preserve for our review his contentionthat the third and fourth counts of the indictment are duplicitous (see People v Sponburgh, 61 AD3d1415 [2009], lv denied 12 NY3d 929 [2009]). In any event, that contention iswithout merit inasmuch as "[e]ach count of [the] indictment . . . charge[s] oneoffense only" (CPL 200.30 [1]; see generally People v Keindl, 68 NY2d 410, 417 [1986],rearg denied 69 NY2d 823 [1987]). We agree with defendant, however, that the fourthcount of the indictment, charging defendant with robbery in the second degree (Penal Law§ 160.10 [2] [b]), is an inclusory concurrent count of robbery in the first degree as chargedin the third count of the indictment (§ 160.15 [4]), and thus should be dismissed. Althoughdefendant correctly concedes that he failed to preserve that contention for our review, we notethat preservation is not required and thus that count four "must be dismissed as a matter of lawbecause a verdict of guilty upon the greater [count] is deemed a dismissal of every lesser[inclusory concurrent count]" (People vRodrigues, 74 AD3d 1818, 1819 [2010], lv denied 15 NY3d 809 [2010], certdenied 562 US —, 131 S Ct 1505 [2011] [internal quotation marks omitted];see CPL 300.40 [3] [b]; People v Skinner, 211 AD2d 979, 980 [1995], lvdenied 86 NY2d 741 [1995]). We therefore modify the judgment accordingly.
Defendant failed to preserve for our review his contention that he was denied a fair trialbased upon two instances of alleged prosecutorial misconduct on summation (see CPL470.05 [2]; People v Hill, 82 AD3d1715 [2011]) and, in any event, that contention is without merit. The statement of the [*2]prosecutor in which he addressed the reason for the absence of aparticular item of physical evidence from the evidence inventory was a "fair response to defensecounsel's summation" (People vAnderson, 52 AD3d 1320, 1321 [2008], lv denied 11 NY3d 733 [2008]), and it "'did not exceed the broad bounds of rhetorical comment permissible in closing argument' " (People v Williams, 28 AD3d1059, 1061 [2006], affd 8 NY3d 854 [2007], quoting People v Galloway, 54NY2d 396, 399 [1981]). Although we agree with defendant that the reference by the prosecutorto defendant's parole status was improper in light of County Court's ruling concerning suchstatus, we conclude that defendant was not deprived of a fair trial by that single instance ofmisconduct (see generally Galloway, 54 NY2d at 401; People v Seeler, 63 AD3d 1595, 1596-1597 [2009], lvdenied 13 NY3d 838 [2009]).
We reject the further contention of defendant that the court's Sandoval rulingconstitutes an abuse of discretion. The record establishes that the court, upon properly weighingthe probative value of defendant's prior convictions against their potential for prejudice (seePeople v Freeney, 291 AD2d 913, 914 [2002], lv denied 98 NY2d 637 [2002]), ruledthat the People were limited to cross-examining defendant only with respect to the fact that hehad two prior felony convictions (see generally People v Hayes, 97 NY2d 203, 207-208[2002]). We likewise reject defendant's contention that he was denied effective assistance ofcounsel (see generally People vBaker, 14 NY3d 266, 270-271 [2010]; People v Baldi, 54 NY2d 137, 147[1981]). We further conclude that the evidence is legally sufficient to support defendant'sconviction of the three counts of robbery in the first degree and the count of criminal possessionof a weapon in the third degree (see generally People v Bleakley, 69 NY2d 490, 495[1987]) and, viewing the evidence in light of the elements of those crimes as charged to the jury(see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
Finally, we reject defendant's contention that the sentence is unduly harsh and severe, and wenote that he failed to preserve for our review his further contention that the sentence imposedconstitutes cruel and unusual punishment (see People v Reese, 31 AD3d 582 [2006], lv denied 7NY3d 851 [2006]). In any event, that further contention lacks merit. Defendant's sentence is not "'grossly disproportionate to the crime' " and thus does not constitute cruel and unusualpunishment (People v Holmquist, 5AD3d 1041, 1042 [2004], lv denied 2 NY3d 800 [2004]; see generally People vThompson, 83 NY2d 477, 479-480 [1994]). Present—Centra, J.P., Peradotto, Lindleyand Sconiers, JJ.