| People v Peck |
| 2012 NY Slip Op 04566 [96 AD3d 1468] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jay Peck,Appellant. |
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Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedJanuary 26, 2011. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree, grand larceny in the third degree and conspiracy in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the surcharge to 5% of the amount of restitution ordered and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofburglary in the second degree (Penal Law § 140.25 [2]), grand larceny in the third degree(former § 155.35) and conspiracy in the fourth degree (§ 105.10 [1]). The chargesstem from defendant's participation in a conspiracy to break into the apartment of the victim, whowas being detained with defendant at the Onondaga County Jail. Through a series of recordedtelephone conversations between defendant, who was incarcerated, and his sister, defendantdirected his sister and her boyfriend to the victim's apartment. Once they arrived, defendant toldthem how to break into the victim's apartment and where to locate $9,000 in cash. Contrary todefendant's contention, County Court properly denied that part of his omnibus motion seeking todismiss the indictment on the ground that the integrity of the grand jury proceeding was impairedwhen the tape-recorded conversations were improperly admitted in evidence (see CPL210.35 [5]). Although the People do not dispute the court's determination that they failed toestablish an adequate foundation for the admission of those recordings (see generally Peoplev Ely, 68 NY2d 520, 527-528 [1986]), they contend that the error did not require dismissalof the indictment. We agree. " '[T]he submission of some inadmissible evidence [to the grandjury] will be deemed fatal only when the remaining evidence is insufficient to sustain theindictment' . . . and, here, the remaining evidence was legally sufficient to supportthe indictment" (People vTuszynski, 71 AD3d 1407, 1408 [2010], lv denied 15 NY3d 810 [2010],quoting People v Huston, 88 NY2d 400, 409 [1996]; see People v Jeffery, 70 AD3d 1512, 1512-1513 [2010]; cf. People v Barabash, 18 AD3d474, 474-475 [2005]).
Defendant further contends that the court erred in allowing a court officer to permit adeliberating juror to separate from the other jurors to make a telephone call without firstinvestigating the necessity of such a telephone call or ensuring that the call was supervised. It isundisputed that defendant raised no objection to the procedures utilized by the court in handling[*2]the matter. We reject defendant's contention that his challengemay be reviewed even in the absence of an objection. Violations of the sequestration provision ofCPL 310.10 are not errors that fall within the "very narrow category of so-called 'mode ofproceedings' errors" that are reviewable even in the absence of a timely objection (People vAgramonte, 87 NY2d 765, 770 [1996]). That is because "the sequestration requirement doesnot 'entail[ ] a part of the process . . . essential to the form and conduct of the actualtrial' " (id., quoting People v Webb, 78 NY2d 335, 339 [1991]; see e.g. Peoplev Williams, 221 AD2d 246, 247 [1995], lv denied 87 NY2d 926 [1996]; People vThurman, 186 AD2d 484, 484-485 [1992], lv denied 81 NY2d 795 [1993]). Wedecline to exercise our power to review defendant's contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
Contrary to defendant's further contention, he was not punished for asserting his right to trial." '[T]he mere fact that [the] sentence imposed after trial is greater than that offered in connectionwith plea negotiations is not proof that defendant was punished for asserting his right to trial' "(People v Powell, 81 AD3d1307, 1308 [2011], lv denied 17 NY3d 799 [2011]; see People v Glynn, 93 AD3d1341, 1342-1343 [2012]; see generally People v Pena, 50 NY2d 400, 411-412[1980], rearg denied 51 NY2d 770 [1980], cert denied 449 US 1087 [1981]). "Inaddition, '[t]he fact that defendant's sentence was greater than that of his codefendant[s, whoaccepted plea agreements,] does not substantiate his [contention] that he was improperlypunished for going to trial' " (People vSmith, 90 AD3d 1565, 1567 [2011], quoting People v Elwood, 80 AD3d 988, 990 [2011], lv denied 16NY3d 858 [2011]; see People v Eddins, 168 AD2d 630, 631 [1990], lv denied 78NY2d 954 [1991]).
Although we conclude that the sentence is not unduly harsh or severe, we note that thePeople correctly concede that the court erred in imposing a 10% surcharge on the amount ofrestitution ordered and instead should have imposed a surcharge of 5% (see Penal Law§ 60.27 [8]; People vLagasse, 68 AD3d 1718 [2009], lv denied 14 NY3d 889 [2010]; People vGahrey M.O., 231 AD2d 909, 909-910 [1996]). We therefore modify the judgmentaccordingly. Present—Scudder, P.J., Centra, Fahey, Peradotto and Sconiers, JJ.