| People v Nails |
| 2012 NY Slip Op 04032 [95 AD3d 1237] |
| May 23, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamelNails, Appellant. |
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Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.),rendered April 4, 2011, convicting him of robbery in the first degree, upon a jury verdict, andsentencing him to a determinate term of imprisonment of 20 years, to be followed by a period of5 years of postrelease supervision.
Ordered that the judgment is modified, as a matter of discretion and in the interest of justice,by reducing the sentence of imprisonment for robbery in the first degree from a determinate termof imprisonment of 20 years, to be followed by a period of five years of postrelease supervision,to a determinate term of imprisonment of 15 years, to be followed by a period of five years ofpostrelease supervision; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vDelamota, 18 NY3d 107, 116-117 [2011]; People v Romero, 7 NY3d 633 [2006]).
The defendant contends that the trial court improperly curtailed defense counsel's summationargument that the People failed to produce certain witnesses and medical evidence. To the extentthe defendant is raising a constitutional claim, his contention is unpreserved for appellate review(see People v Paixao, 23 AD3d677, 678 [2005]; People vMcCollough, 16 AD3d 183, 184 [2005]). In any event, the trial court properly limiteddefense counsel's summation remarks under the circumstances of this case (see People v Thomas, 85 AD3d1572, 1573 [2011]; People v Paixao, 23 AD3d at 678; People v Ramos, 305AD2d 115, 116 [2003]; People v Pepe, 262 AD2d 7, 7-8 [1999]; People vBistonath, 216 AD2d 478, 479 [1995]; People v Turner, 212 AD2d 818 [1995]).[*2]
The defendant waived his contention that the trial courterred in failing to submit the charge of assault in the third degree to the jury (see People v Cleophus, 81 AD3d844, 846 [2011]; People v Boone, 269 AD2d 459, 459-460 [2000]). The defendantalso waived his contention that the trial court erred in failing to submit the charge of robbery inthe third degree to the jury (see People vTerrell, 78 AD3d 865, 866 [2010]).
The defendant's contention that the trial court did not adequately respond to certain jury notesis unpreserved for appellate review (seePeople v Rodriguez, 62 AD3d 728 [2009]; People v Burwell, 57 AD3d 555, 556 [2008]), and, in any event, iswithout merit (see People v Steinberg, 79 NY2d 673, 684-685 [1992]; People vAlmodovar, 62 NY2d 126, 132 [1984]).
Under the circumstances of this case, the sentence imposed was excessive to the extentindicated herein. Mastro, A.P.J., Florio, Chambers and Roman, JJ., concur.