| People v Cardova |
| 2011 NY Slip Op 07648 [88 AD3d 1008] |
| October 25, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v George Cardova, Also Known as Hector Pina,Appellant. |
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Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Kron,J.), rendered May 13, 2009, convicting him of burglary in the second degree and criminalmischief in the fourth degree under indictment No. 2324/07, upon a jury verdict, and imposing anindeterminate term of imprisonment of 23 years to life upon his conviction of burglary in thesecond degree and a definite term of imprisonment of one year upon his conviction of criminalmischief in the fourth degree, to run concurrently with each other, and (2) a judgment of the samecourt (Griffin, J.), rendered May 28, 2009, convicting him of burglary in the second degree underindictment No. 595/09, upon his plea of guilty, and imposing an indeterminate term ofimprisonment of 23 years to life, to run concurrently with the indeterminate term ofimprisonment of 23 years to life imposed upon his conviction of burglary in the second degreeunder indictment No. 2324/07. The appeal from the judgment rendered May 13, 2009, brings upfor review the denial of that branch of the defendant's omnibus motion, made after a hearing(Grosso, J.), which was to suppress identification testimony.
Ordered that the judgments are modified, as a matter of discretion in the interest of justice,by reducing the indeterminate terms of imprisonment of 23 years to life imposed upon thedefendant's convictions of burglary in the second degree under indictment Nos. 2324/07 and595/09, to run concurrently with each other, to indeterminate terms of imprisonment of 18 yearsto life, to run concurrently with each other; as so modified, the judgments are affirmed.
The defendant's contention that the showup identification procedure was unduly suggestive iswithout merit (see People v Amico,78 AD3d 1190 [2010]; People vParris, 70 AD3d 725 [2010]; People v Gonzalez, 61 AD3d 775 [2009]; People v Guy, 47 AD3d 643[2008]; People v Cruz, 31 AD3d660 [2006]; People v Rodgers,6 AD3d 464, 465 [2004]).
The defendant's contention that he was deprived of a fair trial by certain remarks made by theprosecutor during summation is unpreserved for appellate review, as the defendant either failedto object to the comments or made only general objections, and did not request further curativeinstructions or move for a mistrial (see CPL 470.05 [2]; People v Banks, 74 AD3d 1214[2010]). [*2]In any event, the challenged remarks were faircomment on the evidence, permissible rhetorical comment, or responsive to defense counsel'ssummation (see People v Ashwal, 39 NY2d 105, 109-110 [1976]).
The defendant failed to preserve for appellate review his argument that the persistent violentfelony offender sentencing scheme under Penal Law § 70.08 violates the principlesarticulated by the United States Supreme Court in Apprendi v New Jersey (530 US 466[2000]; see CPL 470.05 [2]; People v Kelly, 16 NY3d 803 [2011]; People v Mendez, 71 AD3d 696[2010]). In any event, the argument is without merit (see People v Bell, 15 NY3d 935, 936 [2010], cert denied563 US —, 131 S Ct 2885 [2011]; People v Leon, 10 NY3d 122 [2008]; People v Amico, 78 AD3d 1190[2010]; People v Kelly, 68 AD3d895 [2009]; People v Winfield,63 AD3d 969 [2009]; People vWells, 63 AD3d 967 [2009]; People v Mitchell, 59 AD3d 739 [2009]).
The sentences imposed were excessive to the extent indicated herein.
The contention raised in the defendant's pro se supplemental brief, that he was deprived ofthe effective assistance of counsel, is without merit (see People v Benevento, 91 NY2d708 [1998]; People v Baldi, 54 NY2d 137 [1981]). Skelos, J.P., Balkin, Leventhal andHall, JJ., concur.