| People v Stubbs |
| 2012 NY Slip Op 04545 [96 AD3d 1448] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jason M.Stubbs, Appellant. (Appeal No. 1.) |
—[*1] Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), rendered August28, 2006. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree, criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence on theconviction of criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree is unanimously dismissed and the judgment is modified on the law byvacating the sentence imposed for murder in the second degree and as modified the judgment isaffirmed and the matter is remitted to Monroe County Court for the filing of a predicate felonyoffender statement and resentencing on count one of the indictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him followinga jury trial of murder in the second degree (Penal Law § 125.25 [1]), criminal possessionof a weapon in the second degree (§ 265.03 [former (2)]), and criminal possession of aweapon in the third degree (§ 265.02 [former (4)]), arising from the shooting death of thevictim. In appeal No. 2, he appeals from a resentence on the weapons possession counts. Viewingthe evidence in light of the elements of the crime of murder in the second degree as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict on that count isagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Even assuming, arguendo, that a different verdict would not have been unreasonable, weconclude that the jury did not fail to give the evidence of defendant's intent the weight that itshould be accorded (see id.).
Defendant's objection with respect to the cross-examination of a defense witness by thePeople was sustained, and defendant failed to request a curative instruction with respect to thattestimony. Defendant thus failed to preserve for our review his contention that County Courterred in failing to give a curative instruction (see generally People v Rogers, 70 AD3d 1340, 1340 [2010], lvdenied 14 NY3d 892 [2010], cert denied 562 US —, 131 S Ct 475 [2010]). Inany event, defendant's contention lacks merit.[*2]
By failing to request that the court give an expandedcharge on identification, defendant failed to preserve for our review his contention that the courterred in failing to do so (see generally People v Robinson, 88 NY2d 1001, 1001-1002[1996]). In any event, that contention is without merit inasmuch as the court's charge "reasonablymirrored the expanded identification charge . . . and 'sufficiently apprised the jurythat the reasonable doubt standard applied to identification' " (People v Brooks, 26 AD3d 867 [2006], lv denied 6 NY3d892 [2006]).
We further conclude, however, that the record establishes that defendant is a predicate felonand that the People failed to file the requisite predicate felony offender statement. The courttherefore sentenced defendant as a first violent felony offender. "When it became apparent atsentencing that defendant had a prior felony conviction, the People were required to file a secondfelony offender statement in accordance with CPL 400.21 and, if appropriate, the court was thenrequired to sentence defendant as a second felony offender . . . '[I]t is illegal tosentence a known predicate felon as a first offender' " (People v Griffin, 72 AD3d 1496, 1497 [2010]). Because we cannotpermit an illegal sentence to stand (seePeople v VanValkinburgh, 90 AD3d 1553, 1554 [2011]), we modify the judgment inappeal No. 1 and reverse the resentence in appeal No. 2 by vacating the sentences imposed, andwe remit the matter to County Court for the filing of a predicate felony offender statement andresentencing in accordance with the law (see People v Worth, 83 AD3d 1547, 1548 [2011]).Present—Scudder, P.J., Centra, Peradotto, Carni and Lindley, JJ.