| People v Dingle |
| 2017 NY Slip Op 01382 [147 AD3d 1080] |
| February 22, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Dingle, Appellant. |
Lynn W. L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, andDiane R. Eisner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice,J.), rendered November 5, 2014, convicting him of robbery in the first degree (two counts) androbbery in the third degree, upon a jury verdict, and sentencing him, as a persistent violent felonyoffender, to indeterminate terms of imprisonment of 20 years to life upon each of his convictionsof robbery in the first degree, and, as a persistent felony offender, to an indeterminate term ofimprisonment of 20 years to life upon his conviction of robbery in the third degree, to runconsecutively to each other.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byproviding that all of the sentences imposed shall run concurrently with each other; as somodified, the judgment is affirmed.
Contrary to the defendant's contention, defense counsel's failure to call the complainants aswitnesses at the suppression hearing or move to reopen the hearing based upon their trialtestimony did not deprive him of the effective assistance of counsel (see People v Schultz, 128 AD3d989, 989 [2015]; People vCrespo, 117 AD3d 1538, 1539 [2014]; People v Robles, 116 AD3d 1071 [2014]; People v Jamison, 96 AD3d 571,572 [2012]; People v Gant, 26AD3d 516, 517-518 [2006]). In addition, since the three subject robberies shared sufficientlydistinctive circumstances to establish a modus operandi and, therefore, the evidence of thedefendant's commission of each crime could be considered as evidence of his identity as theperpetrator of the other crime (seePeople v Huggins, 134 AD3d 854, 855-856 [2015]; People v Boone, 129 AD3d 1099, 1100 [2015]; People vMcRae, 276 AD2d 332, 332-333 [2000]), defense counsel was not ineffective for failing toobject to comments made by the prosecutor which purportedly commingled the evidence (seePeople v Boone, 129 AD3d at 1100; People v Currie, 117 AD3d 1074, 1075 [2014]; People v Lewis, 101 AD3d 1154,1154 [2012]).
The defendant's contention that the Supreme Court erred in failing to, sua sponte, charge thejury on the unreliability of cross-racial identification is unpreserved for appellate review since thedefendant did not request such a charge or object to the charge as given (see CPL 470.05[2]; People v Rivera, 138 AD3d1037, 1037 [2016]; People vCruz-Checo, 136 AD3d 840, 841 [2016]). In any event, under the circumstances of thiscase, a cross-racial identification charge would have been improper since the defendant neverplaced the issue in evidence during the trial (see People v [*2]Alexander, 94 NY2d 382, 385 [1999]; People v Boone,129 AD3d at 1099; People v Best,120 AD3d 707, 708 [2014]; Peoplev German, 45 AD3d 861, 861 [2007]). Here, the court's charge correctly conveyed theapplicable legal principles on witness credibility and identification testimony (see People vBoone, 129 AD3d at 1099-1100; People v Washington, 56 AD3d 258, 259 [2008]; People vApplewhite, 298 AD2d 136, 137 [2002]). Contrary to the defendant's contention, defensecounsel's failure to request a cross-racial identification charge did not constitute ineffectiveassistance of counsel (see People vMoore, 15 NY3d 811, 813 [2010]; People v Martin, 141 AD3d 734, 735 [2016]; People v McClean, 137 AD3d 940,941 [2016]).
The defendant's contention that his adjudication as a persistent felony offender for hisconviction of robbery in the third degree was unconstitutional pursuant to Apprendi v NewJersey (530 US 466 [2000]) and its progeny is unpreserved for appellate review (seeCPL 470.05 [2]; People vDaniels, 5 NY3d 738, 740 [2005]; People v Minard, 125 AD3d 691, 692 [2015]), and, in any event, iswithout merit (see People v Giles,24 NY3d 1066, 1068 [2014]; People v Battles, 16 NY3d 54, 59 [2010]; People v Bell, 15 NY3d 935, 936[2010]; People v Wells, 15 NY3d927, 928 [2010]; People vQuinones, 12 NY3d 116 [2009]; People v Rivera, 5 NY3d 61, 67 [2005]; People v Rosen, 96NY2d 329, 335 [2001]). Moreover, the Supreme Court providently exercised its discretion insentencing the defendant as a persistent felony offender on his conviction of robbery in the thirddegree (see Penal Law § 70.10 [2]; CPL 400.20 [1]; People v Minard, 125 AD3d 691,692 [2015]; People v Dixon, 107AD3d 735, 736 [2013]; People vBazemore, 100 AD3d 915, 915 [2012]; People v Watts, 89 AD3d 965, 965 [2011]). The court's conclusionthat the nature of the defendant's criminal conduct in the instant matter, his criminal record, andhis character warranted extended incarceration and lifetime supervision is supported by therecord (see People v Dixon, 107 AD3d at 736; People v Bazemore, 100 AD3d at915). However, the sentence imposed was excessive to the extent indicated herein (see Peoplev Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Mastro, J.P., Austin, Miller andMaltese, JJ., concur.