Opinion
2015-10503, Ind. No. 14-00992.
10-25-2017
The PEOPLE, etc., respondent, v. Crown HODGE, appellant.
Jason M. Bernheimer, Katonah, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Virginia A. Marciano and William C. Milaccio of counsel), for respondent.
Jason M. Bernheimer, Katonah, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Virginia A. Marciano and William C. Milaccio of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., BETSY BARROS, VALERIE BRATHWAITE NELSON, and LINDA CHRISTOPHER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary, J.), rendered September 30, 2015, convicting him of burglary in the second degree, criminal possession of stolen property in the fifth degree, and petit larceny, upon a jury verdict, and sentencing him to concurrent determinate terms of imprisonment of seven years for burglary in the second degree, one year for criminal possession of stolen property in the fifth degree, and one year for petit larceny.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed for burglary in the second degree to a determinate term of imprisonment of four years; as so modified, the judgment is affirmed.
Viewing the evidence adduced at trial in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The decision to declare a mistrial rests in the broad discretion of the trial judge, who is best situated to take all the circumstances into account and determine whether a mistrial is in fact required (see Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 250, 481 N.Y.S.2d 657, 471 N.E.2d 429 ; People v. Clearwater, 269 A.D.2d 462, 462, 702 N.Y.S.2d 921 ). This decision is entitled to great deference by reviewing courts (Matter of Plummer v. Rothwax, 63 N.Y.2d at 250, 481 N.Y.S.2d 657, 471 N.E.2d 429 ). The reason for granting the mistrial, however, must be "actual and substantial" (Matter of Enright v. Siedlecki, 59 N.Y.2d 195, 200, 464 N.Y.S.2d 418, 451 N.E.2d 176 ; see Matter of Roey v. Lopresto, 122 A.D.3d 929, 931, 998 N.Y.S.2d 91 ; Matter of Taylor v. Dowling, 108 A.D.3d 566, 568, 968 N.Y.S.2d 556 ). "Even if the reasons for granting a mistrial are deemed actual and substantial, the court must explore all appropriate alternatives prior to granting a mistrial" (Matter of Taylor v. Dowling, 108 A.D.3d at 568, 968 N.Y.S.2d 556 [internal quotation marks omitted]; see Matter of Cohen v. Lotto, 19 A.D.3d 485, 487, 797 N.Y.S.2d 106 ; Matter of Pronti v. Allen, 13 A.D.3d 1034, 1036, 787 N.Y.S.2d 470 ). Contrary to the defendant's contention, under the circumstances of this case, the trial court providently exercised its discretion in not declaring a mistrial because the court implemented appropriate alternatives to restarting the entire jury selection process (see Matter of Cohen v. Lotto, 19 A.D.3d at 487, 797 N.Y.S.2d 106 ; People v. Adorno, 216 A.D.2d 686, 687, 628 N.Y.S.2d 426 ; People v. Thomas, 212 A.D.2d 474, 475, 623 N.Y.S.2d 203 ), and because the parties were given a fair opportunity to question the prospective jurors as to whether the absence of the codefendant affected their qualifications to serve as jurors (see CPL 270.15[1][c] ).
The defendant failed to preserve for appellate review his contention that the sentencing court penalized him for exercising his right to a jury trial, because he did not set forth this issue on the record at the time of sentencing (see People v. Cruz, 137 A.D.3d 1158, 1160, 27 N.Y.S.3d 643 ; People v. Hatcher, 130 A.D.3d 648, 649, 13 N.Y.S.3d 459 ). This Court nevertheless reaches the defendant's argument in the interest of justice (see People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675 ; People v. Kordish, 140 A.D.3d 981, 982, 33 N.Y.S.3d 434 ). "If a defendant refuses to plead guilty and goes to trial, retaliation or vindictiveness may play no role in sentencing following a conviction. Rather, the conventional concerns involved in sentencing, which include the considerations of deterrence, rehabilitation, retribution, and isolation, must be the only factors weighed when sentence is imposed" ( People v. Patterson, 106 A.D.2d 520, 521, 483 N.Y.S.2d 55 [citations omitted] ). "The fact that the sentence imposed after trial was greater than that offered during plea negotiations is not, standing alone, an indication that the defendant was punished for asserting his right to proceed to trial" ( People v. Cruz, 137 A.D.3d at 1160, 27 N.Y.S.3d 643, citing People v. Valery, 135 A.D.3d 975, 24 N.Y.S.3d 362 ). Nevertheless, such disparities are a factor in the court's overall analysis when deciding whether a sentence was vindictive (see People v. Thatcher, 85 A.D.3d 1065, 925 N.Y.S.2d 855 ; People v. Simmons, 29 A.D.3d 1024, 815 N.Y.S.2d 484 ; People v. Cosme, 203 A.D.2d 375, 610 N.Y.S.2d 293 ; People v. Peterson, 126 A.D.2d 680, 511 N.Y.S.2d 104 ; People v. Accolla, 124 A.D.2d 663, 508 N.Y.S.2d 43 ; People v. Patterson, 106 A.D.2d 520, 483 N.Y.S.2d 55 ).
The defendant, who has no prior felony convictions, was offered a sentence of a definite term of imprisonment of one year as part of a plea agreement. His codefendant, who pleaded guilty to burglary in the second degree, was sentenced to a determinate term of six years' imprisonment, to run concurrently with a four-year sentence that he was already serving on a different case. In addition, the sentencing court admonished the defendant for putting the elderly complaining witness through the "ordeal" of a trial even though the defendant was caught "red-handed." Under these circumstances, the sentence of seven years' imprisonment raises the inference that the defendant was penalized for exercising his right to a jury trial (see People v. Thatcher, 85 A.D.3d 1065, 925 N.Y.S.2d 855 ; People v. Simmons, 29 A.D.3d 1024, 815 N.Y.S.2d 484 ; People v. Cosme, 203 A.D.2d 375, 610 N.Y.S.2d 293 ; People v. Peterson, 126 A.D.2d 680, 511 N.Y.S.2d 104 ; People v. Accolla,
124 A.D.2d 663, 508 N.Y.S.2d 43 ; People v. Patterson, 106 A.D.2d 520, 483 N.Y.S.2d 55 ). Accordingly, we reduce the sentence to the extent indicated herein.