| People v Herring |
| 2014 NY Slip Op 05556 [119 AD3d 958] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 The People of the State of New York,Respondent, v Monte Herring, Appellant. |
Mark Diamond, New York, N.Y., for appellant, and appellant pro se.
David M. Hoovler, District Attorney, Middletown, N.Y. (Elizabeth Schulz andAndrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered October 7, 2005, convicting him of burglary in the first degree (threecounts), attempted robbery in the first degree (three counts), criminal possession of aweapon in the second degree, and criminal possession of a weapon in the third degree,upon a jury verdict, and sentencing him, as a second felony offender, to a determinateterm of imprisonment of 12 years followed by a five-year period of postreleasesupervision on each of the convictions of burglary in the first degree (three counts),attempted robbery in the first degree (three counts), and criminal possession of a weaponin the second degree, and a determinate term of imprisonment of five years followed by afive-year period of postrelease supervision on the conviction of criminal possession of aweapon in the third degree, all sentences to run concurrently.
Ordered that the judgment is modified, on the law, by vacating the period of fiveyears of postrelease supervision imposed on the conviction of criminal possession of aweapon in the third degree; as so modified, the judgment is affirmed, and the matter isremitted to the County Court, Orange County, for the imposition of an appropriate periodof postrelease supervision on that conviction in accordance with Penal Law§ 70.45 (2) (e).
The defendant's challenge to the legal sufficiency of the evidence supporting hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484 [2008]). In any event, viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, uponthe exercise of our factual review power (see CPL 470.15 [5]), we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, there was no reasonable view of the evidencethat the structure at issue was not a dwelling within the meaning of the Penal Law, and,thus, the County Court properly refused to charge the lesser included offense of burglaryin the second degree (see People v Barney, 99 NY2d 367, 373 [2003]).
The defendant's contention that the prosecutor made improper comments on [*2]summation is unpreserved for appellate review, since thedefendant did not object to the comments he now challenges (see People v Romero, 7 NY3d911, 912 [2006]; People vBajana, 82 AD3d 1111, 1112 [2011]). In any event, any improper comments didnot deprive the defendant of a fair trial (see People v Bajana, 82 AD3d at 1112;People v Damon, 78 AD3d860, 861 [2010]; People vGarcia-Villegas, 78 AD3d 727, 728 [2010]; People v Valerio, 70 AD3d 869 [2010]; People v Hendrix, 60 AD3d1081, 1082-1083 [2009]).
The defendant was not deprived of his right to the effective assistance of counselunder the United States or New York Constitutions (see Strickland vWashington, 466 US 668 [1984]; People v Baldi, 54 NY2d 137 [1981]).
However, as the People correctly concede, the period of five years of postreleasesupervision imposed on the conviction of criminal possession of a weapon in the thirddegree exceeds the statutory maximum (see former Penal Law§§ 70.02 [1] [c]; 70.45 [2] [e]; 265.02 [4]). Accordingly, we remit thematter to the County Court, Orange County, for the imposition of an appropriate periodof postrelease supervision on that conviction in accordance with Penal Law§ 70.45 (2) (e).
The defendant's remaining contention is unpreserved for appellate review (seeCPL 470.05 [2]; see alsoPeople v Mestres, 41 AD3d 618 [2007]) and, in any event, is without merit.Dillon, J.P., Hall, Sgroi and Barros, JJ., concur.