| People v Mahon |
| 2020 NY Slip Op 06550 [188 AD3d 915] |
| November 12, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Antonio Mahon, Appellant. |
Paul Skip Laisure, New York, NY (Yvonne Shivers of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Keith Dolan, andGoodwin Procter LLP [Eric D. Lawson] of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County(ShawnDya L. Simpson, J.), rendered April 24, 2017, convicting him of murder in the seconddegree, attempted murder in the second degree, assault in the first degree, burglary in the firstdegree, burglary in the second degree, criminal possession of a weapon in the second degree (twocounts), assault in the second degree (two counts), criminal possession of a firearm, andmenacing in the second degree, upon a jury verdict, and imposing sentence, and (2) a resentenceof the same court imposed June 15, 2017, sentencing him to an indeterminate term ofimprisonment of 25 years to life on the conviction of murder in the second degree, a determinateterm of imprisonment of 25 years plus 5 years of postrelease supervision on the conviction ofattempted murder in the second degree, a determinate term of imprisonment of 25 years plus 5years of postrelease supervision on the conviction of assault in the first degree, a determinateterm of imprisonment of 25 years plus 5 years of postrelease supervision on the conviction ofburglary in the first degree, a determinate term of imprisonment of 15 years plus 5 years ofpostrelease supervision on the conviction of burglary in the second degree, a determinate term ofimprisonment of 15 years plus 5 years of postrelease supervision on each conviction of criminalpossession of a weapon in the second degree, a determinate term of imprisonment of 7 years plus5 years of postrelease supervision on each conviction of assault in the second degree, anindeterminate term of imprisonment of 1
Ordered that the appeal from so much of the judgment as imposed the sentence is dismissed,as that portion of the judgment was superseded by the resentence; and it is further,
Ordered that the judgment is modified, on the law, by vacating the convictions of burglary inthe second degree, assault in the second degree (two counts), and criminal possession of afirearm, and dismissing those counts of the indictment; as so modified, the judgment is affirmedinsofar as reviewed; and it is further,
Ordered that the resentence is modified, on the law and as a matter of discretion in theinterest of justice, (1) by vacating the resentences imposed on the convictions of burglary in thesecond degree, assault in the second degree (two counts), and criminal possession of a firearm,(2) by providing that the resentence imposed on the conviction of criminal possession of aweapon in the second degree under count 8 of the indictment shall run concurrently with theresentences imposed on the convictions of attempted murder in the second degree and assault inthe first degree, and (3) by providing that the resentences imposed on the convictions ofattempted murder in the second degree and assault in the first degree shall run concurrently withthe resentence imposed on the conviction of burglary in the first degree; as so modified, theresentence is affirmed.
We agree with the Supreme Court's determination to deny the defendant's motion, made onthe eve of trial, to sever the burglary and related counts from the other counts in the indictment.The motion was untimely (see CPL 255.20), and the defendant failed to demonstrategood cause for his untimely motion (seePeople v Singh, 60 AD3d 875, 876 [2009]). In any event, the charges were "the same orsimilar in law," each involving the use or possession of a firearm or what appeared to be afirearm (CPL 200.20 [2] [c]; see Penal Law §§ 120.14 [1]; 140.30 [4]),and consequently were properly joinable (see People v Mack, 111 AD2d 186, 187-188[1985]). The defendant failed to show that the charges should be tried separately for good causeor in the interest of justice (see CPL 200.20 [3]). Contrary to the defendant's contention,the record does not demonstrate that there was a significant difference in the quantum of proof ofone incident as compared to the others, or that there was a substantial likelihood that the jurywould be unable to consider separately the proof as it related to each incident (see CPL200.20 [3] [a]; People v Stegeman,139 AD3d 1092, 1093 [2016]).
The defendant's contention that he was deprived of a fair trial by certain improper remarksmade by the prosecutor during summation is unpreserved for appellate review (see CPL470.05 [2]). In any event, to the extent that some of the challenged remarks were improper(see People v Ashwal, 39 NY2d 105, 109 [1976]), they were not so flagrant or pervasiveas to deprive the defendant of a fair trial (see People v Abodalo, 178 AD3d 1067 [2019]).
As the People concede, the defendant's convictions of assault in the second degree underPenal Law § 120.05 (1) and (2) must be dismissed as lesser included concurrentcounts of assault in the first degree under Penal Law § 120.10 (1) (see CPL300.40 [3] [b]; People v Stewart,119 AD3d 1455, 1455 [2014]; People v Cantarero, 248 AD2d 481, 482 [1998]).Additionally, the conviction of burglary in the second degree under Penal Law§ 140.25 (2) must be dismissed as a lesser included concurrent count of burglary inthe first degree under Penal Law § 140.30 (4) (see People v Ortiz, 170 AD3d 892, 893 [2019]), and the convictionof criminal possession of a firearm under Penal Law § 265.01-b (1) must bedismissed as a lesser included concurrent count of criminal possession of a weapon in the seconddegree under Penal Law § 265.03 (1) (b) (see People v Harriott, 181 AD3d 863 [2020]).
We agree with the defendant that the resentence imposed on the conviction of criminalpossession of a weapon in the second degree under count 8 of the indictment must runconcurrently with the resentences imposed on the convictions of attempted murder in the seconddegree and assault in the first degree, which related to the same complainant (see People v Wright, 19 NY3d359, 365 [2012]; People vHamilton, 4 NY3d 654, 658-659 [2005]; People v King, 172 AD3d 1098, 1099 [2019]). The People's theoryunder count 8 of the indictment pertained specifically to that complainant, and the jury wascharged accordingly (see People vDevorce, 178 AD3d 846, 847 [2019]).
The defendant failed to preserve for appellate review his contention that the resentenceimposed improperly penalized him for exercising his right to a jury trial (see People v Hatcher, 130 AD3d648, 649 [2015]). In any event, the record does not reflect that the Supreme Courtimpermissibly punished the defendant for exercising his right to proceed to trial.
However, the resentence imposed, resulting in an aggregate term of imprisonment of 75 yearsto life, was excessive to the extent indicated herein and is reduced to an aggregate term ofimprisonment of 50 years to life (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions either are without merit or need not be reached inlight of our determination. Rivera, J.P., Chambers, Cohen and Hinds-Radix, JJ., concur.