People v Lang

2018 NY Slip Op 05867 [164 AD3d 832]

August 22, 2018

Appellate Division, Second Department

As corrected through Wednesday, October 3, 2018

[*1]

The People of the State of New York,Respondent, v Timothy Lang, Appellant.

Martin Geduldig, Garden City, NY, for appellant, and appellant pro se.

Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and Cristin N. Connellof counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Alan L.Honorof, J.), rendered December 1, 2015, convicting him of robbery in the first degree, robberyin the second degree (four counts), attempted robbery in the first degree, attempted robbery in thesecond degree (two counts), assault in the second degree (four counts), criminal possession of aweapon in the third degree (three counts), criminal possession of stolen property in the fourthdegree, and criminal possession of stolen property in the fifth degree (two counts), upon a juryverdict, and sentencing him, as a second violent felony offender, to determinate terms ofimprisonment of 25 years plus 5 years of postrelease supervision on the conviction of robbery inthe first degree, 15 years plus 5 years of postrelease supervision on each conviction of robbery inthe second degree, 15 years plus 5 years of postrelease supervision on the conviction ofattempted robbery in the first degree, and 7 years plus 5 years of postrelease supervision on eachconviction of attempted robbery in the second degree and each conviction of assault in thesecond degree, indeterminate terms of imprisonment of 31/2 to 7 years on eachconviction of criminal possession of a weapon in the third degree and 2 to 4 years on theconviction of criminal possession of stolen property in the fourth degree, and definite terms ofimprisonment of 1 year on each conviction of criminal possession of stolen property in the fifthdegree, with the term of imprisonment imposed on the conviction of robbery in the first degree torun consecutively to the term of imprisonment imposed on the conviction of attempted robbery inthe first degree, and all terms to otherwise run concurrently with each other.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byreducing the term of imprisonment imposed on the conviction of attempted robbery in the firstdegree from 15 years to 7 years; as so modified, the judgment is affirmed.

The defendant's contention that the prosecutor improperly elicited testimony concerning thewaiver of his Miranda rights (see Miranda v Arizona, 384 US 436 [1966]) and hisstatements to law enforcement officials is unpreserved for appellate review, as he failed to objectat trial to the allegedly improper testimony (see People v Delgado, 134 AD3d 1046 [2015]). In any event, thecontention is without merit. The defendant placed the voluntariness of his statements in issue bytestifying at trial that he did not remember giving the statements to law enforcement officials, andby requesting that the jury be instructed regarding the voluntariness of hisstatements.

[*2] The defendant failed to preserve forappellate review his contention that the sentence imposed improperly penalized him forexercising his right to go to trial (see People v Hurley, 75 NY2d 887, 888 [1990]). In anyevent, the fact that the sentence imposed after trial was greater than the sentence offered duringplea negotiations does not, standing alone, establish that the defendant was punished forexercising his right to go to trial (seePeople v Mujica, 146 AD3d 902 [2017]; People v Silburn, 145 AD3d 799 [2016], affd 31 NY3d 144[2018]; People v Bowers, 144 AD3d1049 [2016]). However, the sentence imposed was excessive to the extent indicated herein(see People v Suitte, 90 AD2d 80 [1982]).

The defendant's contention, raised in his pro se supplemental brief, that he was deprived ofthe effective assistance of counsel is based, in part, on matter appearing on the record and, inpart, on matter outside the record, and thus constitutes a mixed claim of ineffective assistance (see People v Maxwell, 89 AD3d1108 [2011]). It is not evident from the matter appearing on the record that the defendantwas deprived of the effective assistance of counsel. Since the defendant's ineffective assistanceclaim cannot be resolved without reference to matter outside the record, a CPL 440.10proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Tieman, 132 AD3d703 [2015]; People v Mills, 132AD3d 698 [2015]; People vJemmott, 132 AD3d 697 [2015]).

The defendant's remaining contentions raised in his pro se supplemental brief areunpreserved for appellate review and, in any event, without merit. Mastro, J.P., Balkin,Hinds-Radix and Iannacci, JJ., concur.