People v. Niles

• Decision Date: 01 February 1999
• Citation: 258 A.D.2d 478,685 N.Y.S.2d 104
• Parties: 1999 N.Y. Slip Op. 841 The PEOPLE, etc., respondent, v. Clive NILES, appellant.
• Court: New York Supreme Court — Appellate Division

Page 104

685 N.Y.S.2d 104

1999 N.Y. Slip Op. 841

The PEOPLE, etc., respondent, v. Clive NILES, appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 1, 1999.

Carol Khan, New York, N.Y., for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Caroline R. Donhauser, and Phyllis Mintz of counsel), for respondent.

MYRIAM J. ALTMAN, J.P., WILLIAM D. FRIEDMANN, GABRIEL M. KRAUSMAN and DANIEL F. LUCIANO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.), rendered July 8, 1996, convicting him of robbery in the first degree (two counts) and kidnapping in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Sentences imposed for two or more offenses may not run consecutively where a single act constitutes two offenses, or where a single act constitutes one of the offenses and a material element of the other (Penal Law § 70.25; People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722). Contrary to the defendant's contentions, although occurring within one extended transaction, the robbery of each victim herein was comprised of separate and distinct acts and thus the imposition of consecutive sentences is not illegal (see, People v. Shiwlochan, 251 A.D.2d 687, 676 N.Y.S.2d 475; People v. Humphrey, 244 A.D.2d 502, 665 N.Y.S.2d 571; People v. White, 192 A.D.2d 736, 597 N.Y.S.2d 117; People v. Murray, 168 A.D.2d 572, 562 N.Y.S.2d 787).

The defendant's admission of his prior violent felony was made knowingly, voluntarily, and intelligently, and as a result, he did not preserve for appellate review his challenge to his adjudication as a second violent felony offender (People v. Wolmart, 140 A.D.2d 733, 529 N.Y.S.2d 40). In any event, the defendant's claim that he was on drugs at the time he pled guilty to the underlying robbery conviction is devoid of facts sufficient to support a finding of unconstitutionality and does not require a hearing (see, People v. Cooper, 241 A.D.2d 553, 661 N.Y.S.2d 243; People v. Harris, 199 A.D.2d 102, 605 N.Y.S.2d 865).

The defendant's sentence is not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).