Opinion
2012-08368, Ind. No. 1265-10.
02-04-2015
The PEOPLE, etc., respondent, v. Kenneth MINARD, appellant.
Robert C. Mitchell, Riverhead, N.Y. (Louis E. Mazzola of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Louis E. Mazzola of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marion M. Tang of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
Opinion Appeal by the defendant from a judgment of the County Court, Suffolk County (Braslow, J.), rendered August 16, 2012, convicting him of attempted robbery in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted of attempted robbery in the first degree and assault in the second degree in connection with an incident in which he attempted to take money from the complainant. An altercation ensued, during which the defendant was stabbed, the complainant was injured, and, according to the trial testimony of two eyewitnesses and the complainant, the defendant put a gun to the complainant's head. The defendant appeals from the judgment of conviction.
To establish entitlement to a charge of a lesser included offense, a defendant must show both that the greater crime cannot be committed without having concomitantly committed the lesser by the same conduct, and that a reasonable view of the evidence supports a finding that he or she committed the lesser, but not the greater, offense (see CPL 1.20[37] ; 300.50[1]; People v. Rivera, 23 N.Y.3d 112, 120, 989 N.Y.S.2d 446, 12 N.E.3d 444 ). Although robbery in the third degree is a lesser included offense of robbery in the first degree, here there is no reasonable view of the evidence to support a jury finding that the defendant committed the lesser, but not the greater, offense. The complainant and eyewitnesses testified that the defendant held a gun to the complainant's head, and other witnesses testified that the defendant later told them that he had pulled out a gun during the event. No other evidence contradicted that testimony. Accordingly, the County Court properly denied the defendant's request to charge attempted robbery in the third degree as a lesser included offense of attempted robbery in the first degree (see People v. Rivera, 23 N.Y.3d at 121, 989 N.Y.S.2d 446, 12 N.E.3d 444 ; People v. James, 11 N.Y.3d 886, 888, 874 N.Y.S.2d 864, 903 N.E.2d 261 ; People v. Scarborough, 49 N.Y.2d 364, 372, 426 N.Y.S.2d 224, 402 N.E.2d 1127 ; People v. Mitchell, 59 A.D.3d 739, 874 N.Y.S.2d 226 ).
The defendant's contention that the evidence was legally insufficient to support his convictions is partially unpreserved for appellate review (see People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt 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 defendant's contention that the County Court erred in denying his motion for a mistrial without conducting a Buford inquiry (see People v. Buford, 69 N.Y.2d 290, 514 N.Y.S.2d 191, 506 N.E.2d 901 ) of a certain juror is without merit (see People v. Mejias, 21 N.Y.3d 73, 80, 966 N.Y.S.2d 764, 989 N.E.2d 26 ; People v. Buford, 69 N.Y.2d at 299, 514 N.Y.S.2d 191, 506 N.E.2d 901 ; People v. Boney, 119 A.D.3d 701, 702, 989 N.Y.S.2d 137 ).
The defendant's contention that the County Court's denial of his application for costs to obtain the appearance of a witness for further cross-examination deprived him of due process and the right to present a defense is unpreserved for appellate review (see CPL 470.05[2] ). In any event, the contention is without merit (see People v. Flowers, 102 A.D.3d 885, 958 N.Y.S.2d 206 ; People v. Moczo, 261 A.D.2d 340, 690 N.Y.S.2d 428 ).
The defendant's contention that his adjudication as a persistent felony offender was unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and its progeny is unpreserved for appellate review and, in any event, is without merit (see CPL 470.05[2] ; People v. Quinones, 12 N.Y.3d 116, 879 N.Y.S.2d 1, 906 N.E.2d 1033 ; People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194 ; People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 ). Furthermore, the County Court's determination to sentence the defendant as a persistent felony offender was a provident exercise of its discretion (see Penal Law § 70.10 [2 ]; People v. Boney, 119 A.D.3d at 703, 989 N.Y.S.2d 137 ; People v. Dixon, 107 A.D.3d 735, 736, 967 N.Y.S.2d 87 ; People v. Bazemore, 100 A.D.3d 915, 953 N.Y.S.2d 887 ). The County Court's conclusion that the nature of the defendant's criminal conduct in the instant matter, his criminal record, and his character warranted extended incarceration and lifetime supervision is supported by the record (see People v. Dixon, 107 A.D.3d 735, 967 N.Y.S.2d 87 ; People v. Bazemore, 100 A.D.3d 915, 953 N.Y.S.2d 887 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contention does not warrant reversal.