| People v Daniels |
| 2013 NY Slip Op 01090 [103 AD3d 807] |
| February 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Cal Daniels, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Edward A. Bannan of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Hudson, J.), rendered June 18, 2009, convicting him of burglary in the first degree (10counts) and assault in the first degree, upon a jury verdict, and sentencing him todeterminate terms of imprisonment of 25 years followed by a period of five years ofpostrelease supervision on the convictions of burglary in the first degree under counts 1,2, 3, 4 and 5 of the indictment and assault in the first degree under count 6 of theindictment, with these sentences to run concurrently with each other, and to determinateterms of imprisonment of 25 years followed by a period of five years of postreleasesupervision on the convictions of burglary in the first degree under counts 7, 8, 9, 10 and11 of the indictment, with these sentences to run concurrently with each other andconsecutively to the sentences imposed on the first 6 counts of the indictment.
Ordered that the judgment is affirmed.
The County Court providently exercised its discretion in admitting evidence of anuncharged assault committed by a coperpetrator to complete the narrative of eventsunderlying the defendant's commission of the charged crimes. Any prejudice related tothe introduction of the uncharged crime evidence was minimized by the County Court'slimiting instruction. In any event, any error in the admission of such evidence washarmless, as there was overwhelming evidence of the defendant's guilt and no significantprobability that the alleged error contributed to his conviction (see People v Walker, 84 AD3d842, 843 [2011]; People vHelenese, 75 AD3d 653, 654 [2010]).
The County Court properly allowed the People to elicit from a complainant that heknew the defendant because he had purchased drugs from the defendant, since thedefendant opened the door to that line of inquiry (see People v Rojas, 97 NY2d32, 38 [2001]).
The defendant's challenge to the alleged instance of prosecutorial misconduct insummation is unpreserved for appellate review (see People v Masaguilar, 86 AD3d 619, 620 [2011]; People v Muniz, 44 AD3d1074, 1075 [2007]). In any event, the challenged remarks were responsive todefense [*2]counsel's summation, and not so flagrant asto deprive the defendant of a fair trial (see People v Jenkins, 93 AD3d 861, 862 [2012]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). The evidence at trial showed that the defendant participated in a series oflate-night home invasions in which the victims were aroused from sleep and threatenedwith a shotgun and other weapons, had their homes ransacked, and in some instances,were tied with duct tape. Several victims were assaulted, including one who wasseriously injured after being hit in the forehead with a hammer. While our dissentingcolleague is correct that the County Court stated at sentencing that the defendant was a"follower," and not the leader of the group that committed the burglaries, the defendanttold the police that one of the burglaries was his idea, and that he was the one who hadthe shotgun during one of the burglaries.
The defendant's remaining contentions are without merit. Rivera, J.P., Chambers andLott, JJ., concur.
Hall, J., concurs in part, and dissents in part, and votes to modify the judgment, as amatter of discretion in the interest of justice, by reducing the sentence imposed todeterminate terms of imprisonment of 25 years followed by a period of five years ofpostrelease supervision on each count of burglary in the first degree and the count ofassault in the first degree, to run concurrently with each other, with the followingmemorandum:
I agree with the majority as to its determination of all issues raised on this appealexcept the appropriate sentence to be imposed. In my view, the defendant's aggregatesentence of 50 years of imprisonment is excessive. Thus, I must respectfully dissent, inpart.
The defendant was convicted, upon a jury verdict, of 10 counts of burglary in thefirst degree and 1 count of assault in the first degree. These convictions arose out of thedefendant's participation in five separate home invasions. I acknowledge the seriousnature of the crimes committed by the defendant, and am cognizant that the defendant'sactions violated the sanctity of the victims' homes. Nonetheless, I believe that thedefendant's aggregate sentence of 50 years of imprisonment is excessive.
As observed by this Court in People v Suitte (90 AD2d 80 [1982]), eventhough the sentencing of a criminal defendant is a matter entrusted to the discretion ofthe sentencing court, this Court may substitute its own judgment for that of thesentencing court even where the sentencing court has not abused its discretion (see id.at 85-86). This authority is primarily based on CPL 470.15 (3) (c), which permits theAppellate Divisions to modify a sentence "[a]s a matter of discretion in the interest ofjustice."
The defendant was 19 years old when he committed these crimes, and was 21 yearsold at the time of sentencing. The defendant had no prior criminal convictions. Heexpressed remorse for his actions to the Suffolk County Probation Department(hereinafter the Probation Department). Furthermore, while the crimes in this case wereostensibly the product of gang activity, the defendant stated to the Probation Departmentthat he was no longer involved in the gang. I also note that, prior to trial, the defendantwas offered a determinate sentence of 20 years of imprisonment in exchange for a plea ofguilty. The aggregate sentence actually imposed, however, was 30 years greater.
The sentence imposed on the defendant will result in his release from prison when heis 71 years old. That period of time will be the majority of the defendant's adult life. Inmy estimation, the principal objectives of a criminal sanction, i.e., deterrence,rehabilitation, retribution, and isolation (see People v Sanchez, 131 AD2d 606,609 [1987]; People v Suitte, 90 AD2d at 83), can be achieved by imposing anaggregate sentence of 25 years of imprisonment on the defendant, which [*3]is still a substantial sentence. Indeed, with a 25-yearsentence, the defendant would still serve the majority of his young-adult life in prison.
My conclusion in this regard is also guided by the "criterion that a minimum amountof confinement should be imposed 'consistent with the protection of the public, thegravity of the offense and the rehabilitative needs of the defendant' " (People vNotey, 72 AD2d 279, 282-283 [1980], quoting ABA Standards Relating toSentencing Alternatives and Procedures, Approved Draft, § 2.2). In my view, anaggregate sentence of 25 years of imprisonment is the minimum amount of confinementconsistent with the objectives of protecting the public, achieving retribution for thecrimes committed against the victims, and providing the defendant with an opportunityfor rehabilitation.
I acknowledge that the codefendant Thomas Walker also received an aggregatesentence of 50 years in prison, and that such sentence was found to be not excessive bythis Court (see People vWalker, 84 AD3d 842 [2011]). However, I do not believe that this Court'sdetermination in Walker precludes a reduction in the defendant's sentence. Incontrast to the defendant's lack of any prior criminal conviction, Walker was previouslyconvicted of two felonies, one of which was for attempted burglary. While the defendantexpressed remorse for his crimes to the Probation Department, Walker denied hisinvolvement. In addition, the sentencing court found that Walker was a "leader" whilethe defendant was a "follower, one of [Walker's] soldiers." Although Walker and thedefendant were both convicted of 10 counts of burglary in the first degree and 1 count ofassault in the first degree, Walker was also convicted of an additional count of attemptedburglary in the first degree. Based on these distinguishing factors, it is my opinion thatthis Court's determination in Walker does not preclude a reduction in thedefendant's sentence "[a]s a matter of discretion in the interest of justice" (CPL 470.15[3] [c]).
Accordingly, this Court should exercise its discretion by reducing the defendant'ssentence and imposing an aggregate determinate sentence of 25 years of imprisonment.Thus, I respectfully dissent on the basis of the sentence alone, and vote to modify thejudgment by reducing the sentence imposed to the extent indicated.