| People v Ashkar |
| 2015 NY Slip Op 06081 [130 AD3d 1568] |
| July 10, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Andy Ashkar, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered July 23, 2013. The judgment convicted defendant, upon a nonjury verdict, ofcriminal possession of stolen property in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence imposed to anindeterminate term of 5 to 15 years, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following anonjury trial of criminal possession of stolen property in the first degree (Penal Law§ 165.54). Defendant failed to preserve for our review his contention thathis waiver of the right to a jury trial is invalid on the ground that the record fails toestablish either that he signed the written waiver in open court (see People v Dixon, 113 AD3d1104, 1104 [2014], lv denied 23 NY3d 962 [2014]), or that the waiver wasknowing, intelligent, and voluntary (see People v Magnano, 158 AD2d 979, 979[1990], affd 77 NY2d 941 [1991], cert denied 502 US 864 [1991]; People v Dallas, 119 AD3d1362, 1364 [2014], lv denied 24 NY3d 1083 [2014]). We decline to exerciseour power to review that contention as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
By failing to renew his motion for a trial order of dismissal after presenting evidence,defendant failed to preserve for our review his challenge to the legal sufficiency of theevidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]). In any event, viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that theevidence is legally sufficient to establish that defendant "knowingly possesse[d] stolenproperty," i.e., a winning $5 million lottery ticket, and that "the value of the propertyexceed[ed] one million dollars" (Penal Law § 165.54; see§ 155.20 [2] [c]). Viewing the evidence in light of the elements of the crimein this nonjury trial (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict isnot against the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
We reject defendant's contention that he was denied effective assistance of counsel.Defense counsel's representation was not ineffective based upon his failure to object toalleged instances of prosecutorial misconduct (see People v Swan, 126 AD3d 1527, 1527 [2015]), torenew his motion for a trial order of dismissal at the close of the evidence (see People v Woodard, 96AD3d 1619, 1621 [2012], lv denied 19 NY3d 1030 [2012]), or tocross-examine the victim more vigorously (see People v Adams, 247 AD2d 819,819 [1998], lv denied 91 NY2d 1004 [1998]). Rather, the evidence, the law, andthe circumstances of this case, viewed in totality and as of the time of the representation,establish that defendant was afforded meaningful representation (see generally Peoplev Baldi, 54 NY2d 137, 147 [1981]). To the extent that defendant's contention isbased upon defense counsel's allegedly inadequate or erroneous advice concerningdefendant's waiver of a jury trial, the contention is properly raised in a motion pursuant toCPL 440.10 (see Magnano, 158 AD2d at [*2]979).
We agree with defendant, however, that the imposition of the maximum sentence isunduly harsh and severe, particularly in light of the fact that defendant has no priorcriminal history and his crime did not involve the use of violence or threats thereof. Wetherefore modify the judgment as a matter of discretion in the interest of justice byreducing the sentence imposed to an indeterminate term of incarceration of 5 to 15 years,which is the sentence that the People requested after defendant was convicted.Present—Carni, J.P., Lindley, Valentino and DeJoseph, JJ.