| People v Howard |
| 2014 NY Slip Op 06105 [120 AD3d 1259] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Norman S. Howard, Appellant. |
Lynn W. L. Fahey, New York, N.Y. (Casey Rose Scott of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Modica, J.), rendered November 20, 2012, convicting him of burglary in the seconddegree and criminal trespass in the third degree, upon a jury verdict, and sentencing him,as a persistent violent felony offender, to an indeterminate term of imprisonment of 20years to life upon his conviction of burglary in the second degree and a definite term ofimprisonment of 90 days upon his conviction of criminal trespass in the third degree, torun concurrently with each other.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the indeterminate term of imprisonment of 20 years to life imposedupon the defendant's conviction of burglary in the second degree to an indeterminateterm of imprisonment of 16 years to life; as so modified, the judgment is affirmed.
The defendant's contention that certain remarks made by the prosecutor duringsummation were improper is unpreserved for appellate review since he either failed toobject to the remarks or made only a general objection (see People v Ambers, 115AD3d 671 [2014]; People vStevens, 114 AD3d 969 [2014]). In any event, the defendant's contention iswithout merit. The prosecutor's remarks were either fair comment on the evidence orresponsive to defense counsel's summation (see People v Caldwell, 115 AD3d 870 [2014]; People v Polin, 63 AD3d1180 [2009]). Contrary to the defendant's alternative contention, he was notdeprived of the effective assistance of counsel by his attorney's failure to raise specificobjections to certain remarks made by the prosecutor during summation. There can be nodeprivation of effective assistance of counsel arising from the failure to make a motion orargument that had little or no chance of success (see People v Ennis, 11 NY3d 403, 415 [2008]; People v Stultz, 2 NY3d277, 287 [2004]; People vKent, 79 AD3d 52, 72 [2010], mod on other grounds 19 NY3d 290[2012]).
The defendant also contends that reversal is warranted because a prosecution witnesstestified that, in addition to others, she spoke to "the parole officer" at the scene of thecrimes. This contention is without merit. The trial court sua sponte ruled that thestatement was inadmissible, and directed that the statement be stricken from the record.The jury is presumed to have followed the court's instruction to disregard anythingstricken from the record (seePeople v Baker, 14 NY3d 266, 274 [2010]).
[*2] The defendant was convicted of burglary in the seconddegree and criminal trespass in the third degree with respect to two neighboringproperties. The sentence imposed—i.e., an indeterminate term of imprisonment of20 years to life on the burglary count and a concurrent definite term of imprisonment of90 days on the criminal trespass count—was excessive (see People vSuitte, 90 AD2d 80 [1982]). While the sentencing of a criminal defendant is a matterentrusted to the discretion of the sentencing court, this Court may exercise its interest ofjustice jurisdiction to substitute its own judgment for that of the sentencing court evenwhere the sentencing court has not abused its discretion (see id. at 85-86; CPL470.15 [3] [c]).
The interest of justice warrants a reduction in the sentence imposed upon thedefendant's conviction of burglary in the second degree from an indeterminate term ofimprisonment of 20 years to life to an indeterminate term of imprisonment of 16 years tolife (see People v Cubino,50 AD3d 312 [2008]). Based on the defendant's criminal history, he was adjudicateda persistent violent felony offender and, as a result, faced a sentencing range of between16 and 25 years to life imprisonment upon his conviction of burglary in the seconddegree (see Penal Law §§ 70.02 [1] [b]; 70.08 [2], [3] [b]).The evidence at trial showed that, although the defendant entered his neighbor's homeunlawfully with the intent to commit a crime therein, no items were taken from the home,and no one was threatened or physically harmed.
Considering the nature of the crime, the minimal harm to the victims, the particularcircumstances of this defendant—who has a history of mental healthissues—and the purpose of a penal sanction, an indeterminate sentence of 16 yearsto life imprisonment upon the defendant's conviction of burglary in the second degree isjust and appropriate (see People v Suitte, 90 AD2d at 83). Specifically, thedefendant has been diagnosed with bipolar disorder, a mental illness that runs in hisfamily, and has also been diagnosed with major depression and has struggled with drugaddiction. Following the defendant's release from prison in 2009, he made positivestrides in his life by participating in outpatient mental health counseling and takingmedication, and enrolling in college full-time. He performed well academically, wasworking toward a bachelor's degree, and had plans to pursue a master's degree, and acareer in youth counseling. However, the defendant experienced a setback in July 2011,one month before the instant offenses were committed, when his 28-year-old son wasshot and killed, causing his depression to worsen. The instant offenses were committedduring this period of his life. Nonetheless, the defendant had been living in thecommunity for two years without incident before committing the instant offenses. Whilewe agree with our dissenting colleague that the defendant's criminal history is extensive,such criminal history is adequately taken into consideration by the Penal Law provisionsproviding increased sentences for persistent violent felony offenders (see PenalLaw § 70.08 [2], [3]). Based on the circumstances of the defendant'scommission of burglary in the second degree and his efforts at rehabilitation, a sentenceof imprisonment longer than the statutory minimum of 16 years to life is unduly harshand excessive, and we modify the sentence accordingly (see CPL 470.15 [6] [b]).Hall, J.P., Duffy and LaSalle, JJ., concur.
Roman, J., concurs in part, and dissents in part, and votes to affirm the judgment,with the following memorandum: I agree with the majority's determination that thedefendant's convictions should not be disturbed. However, I disagree with the majority'sconclusion that the indeterminate sentence of imprisonment of 20 years to life imposedupon the defendant's conviction of burglary in the second degree was excessive andwould, therefore, affirm the judgment of conviction.
Generally, the determination as to what constitutes an appropriate sentence is amatter entrusted to the sound discretion of the sentencing court, "after due considerationgiven to, among other things, the crime charged, the particular circumstances of theindividual before the court and the purpose of a penal sanction, i.e., societal protection,rehabilitation and deterrence" (People v Farrar, 52 NY2d 302, 305 [1981]; seePeople v Appelgate, 176 AD2d 888, 890 [1991]; People v Suitte, 90 AD2d80, 83 [1982]; People v Junco, 43 AD2d 266, 268 [1974], affd 35 NY2d419 [1974]). The sentencing court "is in the most advantageous position to determine theproper sentence, having [*3]observed the defendant andbeing intimately familiar with the facts and circumstances underlying the conviction"(People v Junco, 43 AD2d at 268; see People v Suitte, 90 AD2d at85).
Here, the defendant was convicted of burglary in the second degree and criminaltrespass in the third degree after he broke into his neighbor's home, and, upon being seenby her relatives, who were house guests visiting from Texas, fled from the premises andinto another neighbor's backyard. As a persistent violent felony offender, the defendantfaced a sentencing range of between 16 and 25 years to life imprisonment on hisconviction of burglary in the second degree, a class C violent felony offense (seePenal Law §§ 70.02 [1] [b]; 70.08 [2], [3] [b]). At sentencing, thePeople requested that the Supreme Court impose the maximum sentence, which was anindeterminate term of imprisonment of 25 years to life. The court, noting, among otherthings, the "unsettling" nature of the defendant's act of burglarizing the home of hisnext-door neighbor "in broad daylight with People actually in the house," as well as thedefendant's significant criminal history, sentenced the defendant, as a persistent violentfelony offender, to concurrent terms of imprisonment of 20 years to life on his convictionof burglary in the second degree and 90 days on his conviction of trespass in the thirddegree.
The defendant's instant convictions represent his latest in a criminal history thatspans almost three decades, and includes six arrests and multiple felony convictions.According to the presentence investigation report, in February 1984, the defendant wassentenced to concurrent indeterminate terms of imprisonment of 1 to 3 years inconnection with two separate convictions of attempted robbery in the second degree. Thedefendant was released to parole in August 1985. However, his parole was revoked oneyear later, due to a violation. In June 1986, the defendant was convicted of robbery in thesecond degree, and sentenced to an indeterminate term of imprisonment of 4 to 8 years.He was paroled again in November 1989, and discharged in March 1993. In April 1998,the defendant was convicted of attempted burglary in the second degree and attemptedcriminal possession of a weapon in the third degree, and sentenced to concurrentindeterminate terms of imprisonment of 12 years to life and 2 years to life, respectively.The defendant was placed on lifetime parole in November 2009.
The record thus reflects that, between 1984 and the commission of the instantoffenses in August 2011, the defendant spent more than 15 years in prison in connectionwith the aforementioned convictions. The escalating sentences that the defendantreceived during that time clearly did not deter him from engaging in further criminalactivity. Notably, the defendant committed the instant offenses while on lifetimeparole.
Moreover, the record reveals that the defendant did not express any remorse for hisactions. To the contrary, he denied guilt of the burglary charge by impugning thecharacter of one of the members of the household of the home that he entered. In thisregard, he told the New York City Department of Probation that he "was having anaffair" when "the woman's husband came home," so he left the house and went intoanother neighbor's yard, which was why he was also charged with criminal trespass. Thedefendant's account of the events was contrary to the overwhelming evidence at trial,which established that, at the time of the incident on August 4, 2011, the femalehomeowner had left for work, and the defendant entered the house without permissionand fled upon being seen by her house guests, who had arrived from Texas the eveningbefore the burglary.
Under the circumstances of this case, it cannot be said that the sentencing courtimprovidently exercised or abused its discretion in sentencing the defendant to anindeterminate term of imprisonment of 20 years to life upon his conviction of burglary inthe second degree, which was five years less than the maximum permissible sentence fora persistent violent felony offender convicted of a class C violent felony offense, andfour years greater than the minimum (see Penal Law §§ 70.02[1] [b]; 70.08 [3] [b]). Moreover, the defendant failed to establish the existence of any"extraordinary circumstances that would warrant disturbing the sentence imposed" in theinterest of justice (People vBussey, 67 AD3d 819, 820 [2009]; see People v McCants, 73 AD3d 1086 [2010]).
Accordingly, I find that the sentence imposed on the defendant's conviction of [*4]burglary in the second degree was not excessive, and wouldaffirm the judgment of conviction.