| People v Valery |
| 2016 NY Slip Op 00533 [135 AD3d 975] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jerry Valery, Appellant. |
Richard M. Langone, Garden City, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Ilisa T. Fleischer and RalphBranciforte of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Sullivan, J.), rendered September 12, 2012, convicting him of burglary in the firstdegree (two counts), attempted robbery in the second degree, attempted robbery in thethird degree, resisting arrest, and assault in the second degree (two counts), upon a juryverdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the conviction of attempted robbery in the third degree, vacating thesentence imposed thereon, and dismissing that count of the indictment; as so modified,the judgment is affirmed.
The court did not err in denying the defendant's request for a justification charge onthe counts of assault in the second degree and resisting arrest. There was no reasonableview of the evidence that would support a finding of justification and, therefore, thecourt was under no obligation to submit the question to the jury (see People vOdinga, 143 AD2d 202 [1988]; People v Acevedo, 117 AD2d 813[1986]).
Viewing the evidence in the light most favorable to the prosecution, we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt on thetwo counts of burglary in the first degree, two counts of assault in the second degree, andattempted robbery in the second degree (see People v Contes, 60 NY2d 620, 621[1983]). Moreover, upon the exercise of our factual review power (see CPL470.15 [5]), we are satisfied that the verdict of guilt on those counts was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633, 644-645 [2006]).
However, as the People correctly contend, attempted robbery in the third degree is alesser included offense of attempted robbery in the second degree (see Penal Law§§ 160.10 [2] [a]; 160.05). Since the defendant's conviction of thegreater count is deemed a dismissal of the lesser count pursuant to CPL 300.40 (3) (b),we vacate the defendant's conviction of attempted robbery in the third degree, and thesentence imposed thereon. Although the defendant did not raise this issue at trial anddoes not raise it on appeal, we reach it as a matter of discretion in the interest of justice(see CPL 470.15 [3] [c]).
[*2] Thedefendant's contention that trial counsel was ineffective is without merit. The evidence,the law, and the circumstances of this case, viewed in totality and as of the time of therepresentation, reveal that counsel provided meaningful representation (see People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147[1981]).
Finally, given the seriousness of the crimes and the defendant's extensive criminalhistory, it cannot be said that the sentence imposed was excessive (see People vSuitte, 90 AD2d 80 [1982]). The fact that the sentence imposed after trial was greaterthan the sentence offered during plea negotiations is not, standing alone, an indicationthat the defendant was punished for asserting his right to proceed to trial. There is noindication in the record that the sentence was the result of vindictiveness or retributionfor the defendant's refusal to accept a plea and his exercise of the right to a jury trial (see People v Martinez, 26NY3d 196 [2015]; People vPerez, 132 AD3d 911 [2015]; People v Lerner, 116 AD3d 1065 [2014]; People v Fernandez, 115 AD3d977 [2014]). Eng, P.J., Mastro, Cohen and Miller, JJ., concur.