| People v Oakley |
| 2013 NY Slip Op 08295 [112 AD3d 1064] |
| December 12, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vRonald K. Oakley, Appellant. |
—[*1] Michael A. Cozzolino, Special Prosecutor, Claverack, for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of Columbia County(Czajka, J.), rendered March 2, 2011, convicting defendant upon his plea of guilty of thecrimes of burglary in the second degree, burglary in the third degree (19 counts), grandlarceny in the third degree and petit larceny.
Defendant was caught stealing copper pipes from a business in Columbia Countyand, after his arrest, acknowledged that he had stolen copper and other items fromnumerous locations in the County on various dates. He subsequently pleaded guilty toburglary in the second degree, 19 counts of burglary in the third degree, grand larceny inthe third degree and petit larceny. County Court sentenced defendant, as a second felonyoffender, to an aggregate term of 18½ years in prison together with five years ofpostrelease supervision. Defendant appeals.
We find no merit in defendant's contention that the statutory requirements of a validarraignment were not met and, thus, that County Court failed to gain personal jurisdictionover him. He was present at the arraignment and represented by counsel. His counselacknowledged receipt of the indictment and its attachments, entered a plea of not guiltyand waived a reading of the indictment. The statutory requirements were satisfied(see CPL 210.15; People v Steed, 17 AD3d 928, 929 [2005], lvdenied 5 NY3d 770 [2005]; People v Buckner, 274 AD2d 832, 833 [2000],lv denied 95 NY2d 904 [2000]).
Defendant's right to contest the indictment as multiplicitous was forfeited by his pleaof [*2]guilty (see People v Nelson, 266 AD2d730, 731 [1999], lv denied 94 NY2d 865 [1999]). In any event, the argument isunpersuasive in that the indictment, together with the attachments thereto, establishedthat the counts at issue were based on separate acts.
The plea allocution as to burglary in the second degree did not negate an essentialelement of that crime. Although a 91-year-old woman was sleeping in the building,defendant claimed that he did not think anybody was in there when he entered. The factthat he did not know that the building was occupied does not affect the status of thebuilding as a dwelling within the meaning of the statute (see Penal Law§§ 140.00 [3]; 140.25 [2]; People v Henry, 64 AD3d 804, 805 [2009], lvdenied 13 NY3d 860 [2009]). Nor was it necessary to establish that he knew at thetime that he entered the building that it was a dwelling (see Penal Law §140.25 [2]; see also CJI2d[NY] Penal Law § 140.25 [2]—Dwellingn 14). When asked during the allocution whether somebody was living there, defendantresponded, "I believe so," and he repeatedly acknowledged that the building was aresidence. His current contention that he did not learn until after committing the crimethat the building was a dwelling does not negate an essential element of the crime.
Review of the record reveals that defendant received meaningful representation andthus his ineffective assistance of counsel argument must fail (see People v Leszczynski, 96AD3d 1162, 1162-1163 [2012], lv denied 19 NY3d 998 [2012]; People v Chaney, 72 AD3d1194, 1195 [2010]). In light of defendant's extensive criminal history and the factthat County Court imposed the sentences for many of the crimes to run concurrentlywhen they could have been made consecutive, we find neither an abuse of discretion norextraordinary circumstances meriting a modification of the sentence (see People v Boula, 106 AD3d1371, 1374 [2013], lv denied 21 NY3d 1040 [2013]; People v Kendall, 91 AD3d1191, 1193 [2012]). The remaining arguments have been considered and are withoutmerit.
Peters, P.J., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.