| People v Lerner |
| 2014 NY Slip Op 02955 [116 AD3d 1065] |
| April 30, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Edward Lerner, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren Tan of counsel), forrespondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Suffolk County(Condon, J.), rendered June 9, 2010, convicting him of promoting prison contraband inthe first degree, attempted assault in the third degree, conspiracy in the sixth degree, andobstructing governmental administration in the second degree under indictment No.721A-09, upon a jury verdict, and imposing sentence, (2) a judgment of the same court,also rendered June 9, 2010, convicting him of assault in the second degree (four counts)under indictment No. 1742B-09, upon a jury verdict, and sentencing him to determinateterms of imprisonment of four years on each of the convictions under counts 14 and 15of the indictment, followed by four years of postrelease supervision, to run consecutivelywith each other and with the sentence imposed under indictment No. 02926-08, anddeterminate terms of imprisonment of four years on each of the convictions under counts11 and 12 of the indictment, followed by four years of postrelease supervision, to runconcurrently with each other and with all of the other sentences imposed, and (3) ajudgment of the same court (R. Doyle, J.), also rendered June 9, 2010, convicting him ofattempted robbery in the second degree under indictment No. 02926-08, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment rendered under indictment No. 721A-09 is modified, onthe law, by vacating the conviction of attempted assault in the third degree, vacating thesentence imposed thereon, and dismissing that count of the indictment; as so modified,the judgment rendered under indictment No. 721A-09 is affirmed; and it is further,
Ordered that the judgment rendered under indictment No. 1742B-09 is modified, onthe law, by vacating the periods of postrelease supervision imposed upon the convictionsof assault in the second degree; as so modified, the judgment rendered under indictmentNo. 1742B-09 is affirmed, and the matter is remitted to the Supreme Court, SuffolkCounty, for resentencing in accordance herewith; and it is further;
Ordered that the judgment rendered under indictment No. 02926-08 is affirmed.
The defendant was convicted of crimes that he committed while he was incarcerated[*2]at the Suffolk County Correctional Facility inRiverhead. Under a separate indictment, he was also convicted, upon his plea of guilty,of attempted robbery in the second degree, arising from an unrelated incident. On thisappeal, the defendant raises numerous claims relating to the sufficiency of the evidence,certain evidentiary rulings, and the sentences imposed.
As correctly conceded by the People, the evidence was not legally sufficient toestablish the defendant's guilt of attempted assault in the third degree beyond areasonable doubt as that crime was charged to the jury. Accordingly, the conviction as tothat count and the sentence imposed thereon are vacated, and that count is dismissed. Asto all of the defendant's other convictions, viewing the evidence at trial in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [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 as tothose crimes was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
We reject the defendant's contention that he is entitled to reversal of the judgmentsbecause of the testimony as to his codefendant's membership in a gang (see People vMurray, 116 AD3d 1068 [2014] [decided herewith]), particularly in light of the Court's limiting instructionconcerning the use of that testimony (see People v Ramirez, 23 AD3d 500, 501 [2005]).
As the defendant contends and the People correctly concede, under Penal Law§ 70.45 (2) (e), the periods of postrelease supervision applicable to a sentenceimposed upon a conviction of assault in the second degree must be between 1½ and3 years. Accordingly, we vacate the periods of postrelease supervision imposed upon thedefendant's convictions of assault in the second degree and remit the matter to theSupreme Court, Suffolk County, for resentencing to proper periods of postreleasesupervision on those convictions in accordance with Penal Law § 70.45 (2) (e).
The defendant failed to preserve for appellate review his contention that the court, bythe sentences it imposed after trial, penalized him for exercising his right to a trial (see People v Seymore, 106AD3d 1033, 1034 [2013]). In any event, the fact that the sentences imposed aftertrial were greater than what the defendant had been offered in connection with aproposed plea agreement does not, standing alone, establish that he was punished forproceeding to trial. Moreover, the transcript of the sentencing proceedings does notsupport a finding that the sentencing determinations were tainted by retaliation orvindictiveness (see People vGriffin, 98 AD3d 688, 690 [2012]).
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80[1982]). Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.