| People v Grist |
| 2012 NY Slip Op 06223 [98 AD3d 1061] |
| September 19, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidGrist, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, andKatherine C. Reilly of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.),rendered November 25, 2009, convicting him of grand larceny in the fourth degree, criminalpossession of stolen property in the fourth degree, and criminal mischief in the fourth degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. In fulfilling our responsibility to conduct anindependent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The court providently exercised its discretion in granting the People's application to amendthe indictment to change the description of the property stolen from "credit cards" to "a creditcard or debit card" (see CPL 200.70; People v Spann, 56 NY2d 469, 472-473[1982]). Contrary to the defendant's contentions, the amendment of the indictment did notimproperly change the prosecution's theory of the case (see People v Lyons, 60 AD3d 869 [2009]; cf. People v Hong Wu, 81 AD3d849, 850 [2011]; People v Powell, 153 AD2d 54 [1989]).
Further, having adjudicated the defendant as a persistent felony offender, the courtprovidently exercised its discretion in imposing the enhanced sentence authorized by Penal Law§ 70.10 (2) (see People v Mason, 277 AD2d 170 [2000]; People v Thomas,255 AD2d 468 [1998]). The legislature has defined a "persistent felony offender" as a personconvicted of a felony after having previously been convicted of two or more qualifying felonies(Penal Law § 70.10 [1]). At sentencing, a court has the discretion to impose the enhancedpenalties of the statute, upon consideration of the history [*2]andcharacter of the defendant, the nature and circumstances of the crime, and the interests of thepublic (see Penal Law § 70.10 [2]; People v Anderson, 94 AD3d 1010, 1013 [2012], lv denied19 NY3d 956 [2012]; People vRamos, 45 AD3d 702, 703 [2007]; People v Stevens, 45 AD3d 610, 611 [2007]).
Here, the court considered the proper statutory criteria, and there was an ample basis fromwhich to conclude that the enhanced sentence authorized for persistent felony offenders wasappropriate. The defendant had nine prior felony convictions over the course of more than twodecades. The defendant's prior felony convictions were primarily for criminal mischief, criminalpossession of stolen property, and grand larceny, similar to the offenses of which he wasconvicted here. As such, he is the very definition of a recidivist, "who commits the same type ofcrime over and over, and after serving each term, reverts to the same criminal behavior" (People v Jennings, 33 AD3d 378,379 [2006]; see Matter of Roballo v Smith, 99 AD2d 5 [1984], affd 63 NY2d 485[1984]). In addition, the defendant refused to be interviewed as part of his presentenceinvestigation, expressed no remorse for his conduct, and failed to display any willingness torehabilitate himself (see People v Batista, 235 AD2d 631, 632-633 [1997]). The court,upon determining that the enhanced sentence authorized by Penal Law § 70.10 (2) wasappropriate, imposed the minimum sentence authorized under the enhanced sentencing statute.
Our dissenting colleagues believe that the court, instead of imposing the enhanced sentenceauthorized for a persistent felony offender, should have imposed a sentence authorized for asecond felony offender. They are concerned that the minimum term of imprisonment authorizedunder the enhanced sentencing provision of Penal Law § 70.10 (2), which is 15 years tolife, represents a dramatic and severe increase over the maximum term of imprisonmentauthorized for a second felony offender, which is 2 to 4 years. While the chasm between thesetwo sentencing statutes may appear to be unnecessarily wide, we disagree with the dissent'sconclusion that the court's sentencing of the defendant to the enhanced penalty authorized forpersistent felony offenders constituted an improvident exercise of discretion or rendered thesentence "unduly harsh or severe" (CPL 470.15 [6] [b]). It is the function of the legislature, notthe courts, to remedy any statutory inequity or inconsistency. We do not believe, therefore, thatthere is any reason for this Court to disturb the sentencing court's exercise of discretion andreduce the sentence.
The defendant's sentence, which was the minimum authorized enhanced sentence(see Penal Law §§ 70.00 [2] [a]; [3] [a] [i]; 70.10 [2]), was not excessive(see CPL 470.15 [2] [c]; [6] [b]; 470.20 [6]; People v Thompson, 60 NY2d 513,519 [1983]; People v Suitte, 90 AD2d 80 [1982]). Dillon, J.P., Eng, and Sgroi, JJ.,concur.
Balkin, J., concurs in part and dissents in part, and votes to modify the judgment, as a matterof discretion in the interest of justice, by reducing the sentence imposed to an indeterminate termof imprisonment of 2 to 4 years, and otherwise affirm the judgment, with the followingmemorandum, in which Chambers, J., concurs.
I agree that the defendant's conviction should be left undisturbed, but I would reduce hissentence as a matter of discretion in the interest of justice. Therefore, I respectfully dissent fromso much of the order as affirms the sentence.
Sentencing is primarily a matter addressed to the discretion of the sentencing court, but wehave the power to reduce sentences that we find, in the exercise of our own discretion, to be"unduly harsh or severe" (CPL 470.15 [6] [b]; see People v Rivera, 5 NY3d 61, 68 [2005], cert denied 546US 984 [2005]; People v Miles, 173 App Div 179, 183 [1916]). That power to substituteour discretion for that of the sentencing court, even when the sentencing court has not abused itsdiscretion (see People v Suitte, 90 AD2d 80, 85-86 [1982]), extends to whether asentencing court appropriately exercised its discretion to impose a sentence authorized for thecommission of a class A-I felony on a persistent felony offender. Indeed, as the Court of Appealshas recognized, the Appellate Division "can and should mitigate inappropriately severeapplications of the [persistent felony offender] statute" (People v Rivera, 5 NY3d at 68).We have done so, sparingly (see e.g.People v Velazquez, 58 AD3d 646 [2009]; People v Greene, 57 AD3d 1004, 1006 [2008]; People v Truesdale, 44 AD3d 971,972 [2007]; People v Friday, 114 AD2d 970, 972 [1985]).
It is plain that the defendant, who has many convictions, is a career criminal; the courtcorrectly found that he was a persistent felony offender (see Penal Law § 70.10 [1][a]). But, it is just as plain that the defendant is nonviolent; none of his many convictions was foracts involving any level of violence. All have been misdemeanors or low-level felonies forproperty crimes. The defendant's current felony convictions are for the class E nonviolentfelonies of grand larceny in the fourth degree and criminal possession of stolen property in thefourth degree. The court could have sentenced the defendant under Penal Law § 70.06 (3)(e) and (4) (b) to a maximum sentence of an indeterminate term of 2 to 4 years' imprisonment(see Penal Law § 70.10 [2]). When the court determined, instead, to impose asentence authorized for the commission of a class A-I felony (see Penal Law §70.10 [2]), however, the range jumped dramatically: the minimum term beyond that 2-to-4-yearindeterminate term became an indeterminate prison term of 15 years to life, which the courtactually imposed; there is nothing in between.
The unreasonableness of this gap is illustrated by the ironic fact that, were the defendant apersistent violent felony offender convicted of a class E violent felony offense, themaximum permissible term would be an indeterminate term of four years to life (seePeople v Tolbert, 93 NY2d 86, 88 [1999]; William C. Donnino, Practice Commentaries,McKinney's Cons Laws of NY, Book 39, Penal Law § 60.00 at 85). I note that a significantgap between the maximum permissible terms authorized under Penal Law § 70.06 (3) and(4) and the 15-years-to-life minimum permissible term authorized under Penal Law §70.06 (2) also exists, but to a progressively diminishing extent, in the case of persistent felonyoffenders convicted of class D or C nonviolent offenses (see Penal Law § 70.06 [3][c], [d]).
Without legislative attention to this chasm, courts will continue to choose between the2-to-4-year maximum they may see as inadequate and the 15-years-to-life minimum they may seeas draconian. The public is not well served by imposition of too-lenient or too-harsh sentences.Here, in light of the defendant's criminal history, including his current crime, I conclude that hissentence to a term of 15 years to life is unduly harsh, and I would reduce it, as a matter ofdiscretion in the interest of justice, to an indeterminate term of imprisonment of 2 to 4 years.