Opinion
2011-10-25
The PEOPLE, etc., respondent,v.George CARDOVA, also known as Hector Pina, appellant.
Lynn W.L. Fahey, New York, N.Y. (Sarah J. Berger of counsel), for appellant, and appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Sarah J. Berger of counsel), for appellant, and appellant pro se.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Kron, J.), rendered May 13, 2009, convicting him of burglary in the second degree and criminal mischief in the fourth degree under Indictment No. 2324/07, upon a jury verdict, and imposing an indeterminate term of imprisonment of 23 years to life upon his conviction of burglary in the second degree and a definite term of imprisonment of 1 year upon his conviction of criminal mischief in the fourth degree, to run concurrently with each other, and (2) a judgment of the same court (Griffin, J.), rendered May 28, 2009, convicting him of burglary in the second degree under Indictment No. 595/09, upon his plea of guilty, and imposing an indeterminate term of imprisonment of 23 years to life, to run concurrently with the indeterminate term of imprisonment of 23 years to life imposed upon his conviction of burglary in the second degree under Indictment No. 2324/07. The appeal from the judgment rendered May 13, 2009, brings up for review the denial of that branch of the defendant's omnibus motion, made after a hearing (Grosso, J.), which was to suppress identification testimony.
ORDERED that the judgments are modified, as a matter of discretion in the interest of justice, by reducing the indeterminate terms of imprisonment of 23 years to life imposed upon the defendant's convictions of burglary in the second degree under Indictment Nos. 2324/07 and 595/09, to run concurrently with each other, to indeterminate terms of imprisonment of 18 years to life, to run concurrently with each other; as so modified, the judgments are affirmed.
The defendant's contention that the showup identification procedure was unduly suggestive is without merit ( see People v. Amico, 78 A.D.3d 1190, 913 N.Y.S.2d 675; People v. Parris, 70 A.D.3d 725, 893 N.Y.S.2d 287; People v. Gonzalez, 61 A.D.3d 775, 877 N.Y.S.2d 171; People v. Guy, 47 A.D.3d 643, 850 N.Y.S.2d 476; People v. Cruz, 31 A.D.3d 660, 818 N.Y.S.2d 302; People v. Rodgers, 6 A.D.3d 464, 465, 774 N.Y.S.2d 349).
The defendant's contention that he was deprived of a fair trial by certain remarks
made by the prosecutor during summation is unpreserved for appellate review, as the defendant either failed to object to the comments or made only general objections, and did not request further curative instructions or move for a mistrial ( see CPL 470.05[2]; People v. Banks, 74 A.D.3d 1214, 905 N.Y.S.2d 627). In any event, the challenged remarks were fair comment on the evidence, permissible rhetorical comment, or responsive to defense counsel's summation ( see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564).
The defendant failed to preserve for appellate review his argument that the persistent violent felony offender sentencing scheme under Penal Law § 70.08 violates the principles articulated by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 ( see CPL 470.05[2]; People v. Kelly, 16 N.Y.3d 803, 921 N.Y.S.2d 640, 946 N.E.2d 738; People v. Mendez, 71 A.D.3d 696, 894 N.Y.S.2d 902). In any event, the argument is without merit ( see People v. Bell, 15 N.Y.3d 935, 936, 915 N.Y.S.2d 208, 940 N.E.2d 913, cert. denied ––– U.S. ––––, 131 S.Ct. 2885, 179 L.Ed.2d 1197; People v. Leon, 10 N.Y.3d 122, 855 N.Y.S.2d 38, 884 N.E.2d 1037; People v. Amico, 78 A.D.3d 1190, 913 N.Y.S.2d 675; People v. Kelly, 68 A.D.3d 895, 889 N.Y.S.2d 491; People v. Winfield, 63 A.D.3d 969, 880 N.Y.S.2d 548; People v. Wells, 63 A.D.3d 967, 882 N.Y.S.2d 150; People v. Mitchell, 59 A.D.3d 739, 874 N.Y.S.2d 226).
The sentences imposed were excessive to the extent indicated herein.
The contention raised in the defendant's pro se supplemental brief, that he was deprived of the effective assistance of counsel, is without merit ( see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).