| People v Wright |
| 2015 NY Slip Op 09447 [134 AD3d 1059] |
| December 23, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Phillip Wright, Appellant. |
Lynn W. L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, AnnBordley, and Jean M. Joyce of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Marrus, J.), rendered April 27, 2012, convicting him of criminal possession of a weaponin the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the SupremeCourt erred in excusing, sua sponte, prior to the voir dire, certain prospective jurors whostated they were unable to render a verdict in the case due to their religious or personalbeliefs (see CPL 470.05 [2]; People v Cunningham, 119 AD3d 601, 601 [2014]; People v Umana, 76 AD3d1111 [2010]). Contrary to the defendant's contention, the allegedly improper excusalof those jurors did not constitute a mode of proceedings error exempting him from therules of preservation (see People v Cunningham, 119 AD3d at 601-602; People v Casanova, 62 AD3d88 [2009]; cf. People v Ahmed, 66 NY2d 307, 310 [1985]). In any event,this procedure did not improperly delegate a judicial function to the panelists themselvesand was a proper exercise of the court's discretion (see People v Cunningham,119 AD3d at 602; People v Umana, 76 AD3d at 1112; People v McGhee, 4 AD3d485 [2004]; People v Gayle, 238 AD2d 133 [1997]).
The Supreme Court providently exercised its discretion in denying the defendant'schallenges for cause to three prospective jurors. The statements made by the threeprospective jurors did not rise to the level of actual bias or otherwise indicate that theywould be unable to render an impartial verdict (see People v Glover, 69 AD3d 877, 878 [2010]; People v Smith, 48 AD3d489, 489 [2008]; People v Archer, 210 AD2d 241 [1994]). Thus, there wasno basis for the Supreme Court to administer an expurgatory oath or sustain thedefendant's challenge for cause (see People v Smith, 48 AD3d at 489; People v Ross, 12 AD3d463 [2004]; People v Archer, 210 AD2d at 241-242).
The defendant's contention that his adjudication as a persistent felony offender wasunconstitutional pursuant to Apprendi v New Jersey (530 US 466 [2000]) and itsprogeny is without merit (seePeople v Giles, 24 NY3d 1066, 1068 [2014]; People v Battles, 16 NY3d54, 59 [2010]; People vBell, 15 NY3d 935, 936 [2010]; People v Quinones, 12 NY3d 116, 129-130 [2009]; People v Rivera, 5 NY3d61, 67 [2005]; People v Rosen, 96 NY2d 329, 335 [2001]). Similarlywithout merit is the defendant's contention that Penal [*2]Law § 70.10 is unconstitutional as applied tohim because the Supreme Court considered facts other than his prior convictions inadjudicating him a persistent felony offender. Rather, the Supreme Court based thedefendant's adjudication as a persistent felony offender solely on his prior convictions,facts found by the jury in the instant case, and the Supreme Court's discretionaryevaluation of the seriousness of the defendant's criminal history (see Penal Law§ 70.10 [2]; CPL 400.20 [1]). Moreover, the Supreme Court providentlyexercised its discretion in sentencing the defendant as a persistent felony offender(see Penal Law § 70.10 [2]; CPL 400.20 [1]; People v Perry, 19 AD3d619, 619 [2005]; People v Maraia, 292 AD2d 635, 636 [2002]; People vPage, 265 AD2d 580 [1999]). The Supreme Court's conclusion that the nature of thedefendant's criminal conduct, his history, and his character warranted extendedincarceration and lifetime supervision is amply supported by the record (see People v Prindle, 129AD3d 1506, 1507 [2015]; People v Perry, 19 AD3d at 619; People vMaraia, 292 AD2d at 636). Eng, P.J., Mastro, Cohen and Miller, JJ., concur.