Opinion
2012-05-23
The PEOPLE, etc., respondent, v. Jamel NAILS, appellant.
Gordon & Gordon, P.C., Forest Hills, N.Y. (Peter S. Gordon of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.
Gordon & Gordon, P.C., Forest Hills, N.Y. (Peter S. Gordon of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.
WILLIAM F. MASTRO, A.P.J., ANITA R. FLORIO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered April 4, 2011, convicting him of robbery in the first degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 20 years, to be followed by a period of 5 years of postrelease supervision.
ORDERED that the judgment is modified, as a matter of discretionand in the interest of justice, by reducing the sentence of imprisonment for robbery in the first degree from a determinate term of imprisonment of 20 years, to be followed by a period of 5 years of postrelease supervision, to a determinate term of imprisonment of 15 years, to be followed by a period of 5 years of postrelease supervision; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction is unpreserved for appellate review ( seeCPL 470.05 [2]; People v. Hawkins, 11 N.Y.3d 484, 492, 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 it 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. Delamota, 18 N.Y.3d 107, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383;People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The defendant contends that the trial court improperly curtailed defense counsel's summation argument that the People failed to produce certain witnesses and medical evidence. To the extent the defendant is raising a constitutional claim, his contention is unpreserved for appellate review ( see People v. Paixao, 23 A.D.3d 677, 678, 806 N.Y.S.2d 672;People v. McCollough, 16 A.D.3d 183, 184, 791 N.Y.S.2d 43). In any event, the trial court properly limited defense counsel's summation remarks under the circumstances of this case ( see People v. Thomas, 85 A.D.3d 1572, 1573, 925 N.Y.S.2d 287;People v. Paixao, 23 A.D.3d at 678, 806 N.Y.S.2d 672;People v. Ramos, 305 A.D.2d 115, 116, 757 N.Y.S.2d 741;People v. Pepe, 262 A.D.2d 7, 7–8, 690 N.Y.S.2d 566; People v. Bistonath, 216 A.D.2d 478, 479, 628 N.Y.S.2d 738;People v. Turner, 212 A.D.2d 818, 623 N.Y.S.2d 271).
The defendant waived his contention that the trial court erred in failing to submit the charge of assault in the third degree to the jury ( see People v. Cleophus, 81 A.D.3d 844, 846, 916 N.Y.S.2d 624;People v. Boone, 269 A.D.2d 459, 459–460, 704 N.Y.S.2d 265). The defendant also waived his contention that the trial court erred in failing to submit the charge of robbery in the third degree to the jury ( see People v. Terrell, 78 A.D.3d 865, 866, 910 N.Y.S.2d 368).
The defendant's contention that the trial court did not adequately respond to certain jury notes is unpreserved for appellate review ( see People v. Rodriguez, 62 A.D.3d 728, 880 N.Y.S.2d 89;People v. Burwell, 57 A.D.3d 555, 556, 867 N.Y.S.2d 701), and, in any event, is without merit ( see People v. Steinberg, 79 N.Y.2d 673, 684–685, 584 N.Y.S.2d 770, 595 N.E.2d 845;People v. Almodovar, 62 N.Y.2d 126, 132, 476 N.Y.S.2d 95, 464 N.E.2d 463).
Under the circumstances of this case, the sentence imposed was excessive to the extent indicated herein.