| People v Salamone |
| 2011 NY Slip Op 08382 [89 AD3d 961] |
| November 15, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PaulSalamone, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), forrespondent.
Appeals by the defendant from two judgments of the County Court, Suffolk County (Hudson, J.),both rendered October 6, 2009, convicting him of burglary in the third degree (five counts), grandlarceny in the third degree, and scheme to defraud in the first degree under indictment No. 2040/08,and burglary in the third degree (two counts) and grand larceny in the fourth degree (two counts) underindictment No. 472/09, upon a jury verdict, and imposing sentences.
Ordered that the judgments are affirmed, and the matter is remitted to the County Court, SuffolkCounty, for further proceedings pursuant to CPL 460.50 (5).
Contrary to the defendant's contention, the County Court did not err in refusing to instruct the jurywith a specific charge on the mistake of fact defense since the court's instructions on the elements ofburglary in the third degree and grand larceny in the third and fourth degrees adequately covered thedefense theory (see People v Williams, 81 NY2d 303, 316-317 [1993]; People v Kowalewski, 39 AD3d 770,771 [2007]; People v Grimaldi, 6 AD3d722, 722-723 [2004]; People vStorms, 2 AD3d 757, 757 [2003]; People v Banks, 248 AD2d 183, 183 [1998]).The defendant's contention that he was entitled to a charge on "claim of right" with respect to the grandlarceny counts is unpreserved for appellate review (see CPL 470.05 [2]; People v Ace, 51 AD3d 1379, 1380[2008]; People v Fuller, 252 AD2d 353 [1998]). In any event, viewing the evidence in the lightmost favorable to the defendant (see People v Taylor, 80 NY2d 1, 12 [1992]), we find thatthere was no reasonable view of the evidence which supported issuing the charge on the "claim of right"defense with respect to the grand larceny counts (cf. People v Engstrom, 86 AD3d 580, 582 [2011]).
The defendant's challenges to the alleged instances of prosecutorial misconduct in summation areunpreserved for appellate review (see CPL 470.05 [2]; People v Masaguilar, 86 AD3d 619, 620 [2011]; People v Muniz, 44 AD3d 1074, 1074[2007]; People v Jenkins, 38 AD3d566, 567 [2007]). In any event, although some of the prosecutor's comments in summation wereimproper, they constituted harmless error (see People v Crimmins, 36 NY2d 230, 241-242[1975]; People v Ortiz, 46 AD3d580, 581 [2007]).
The defendant received meaningful representation (see People v Benevento, 91 NY2d[*2]708, 712 [1998]).
Contrary to the defendant's contention, the imposition of consecutive sentences was not illegal(see Penal Law § 70.25 [2]). Each of the burglaries and grand larcenies committed bythe defendant was a separate and distinct act committed against a separate victim (see People vTruesdell, 70 NY2d 809, 811 [1987]; People v Dieppa, 285 AD2d 558, 558-559[2001]; People v Rosa, 249 AD2d 334, 335 [1998]; People v White, 192 AD2d736, 737 [1993]; People v Higgins, 137 AD2d 620, 620-621 [1988]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Florio, J.P., Dickerson, Chambers and Cohen, JJ., concur.