People v. Oppenheimer

• Decision Date: 02 June 1997
• Citation: 658 N.Y.S.2d 1014,240 A.D.2d 437
• Parties: The PEOPLE, etc., Respondent, v. Antonio OPPENHEIMER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1014

658 N.Y.S.2d 1014

240 A.D.2d 437

The PEOPLE, etc., Respondent, v. Antonio OPPENHEIMER, Appellant.

Supreme Court of New York, Appellate Division Second Department.

June 2, 1997.

Sally Wasserman, White Plains, for appellant, and appellant pro se.

Jeanine Pirro, District Attorney, White Plains (Anne E. Minihan and Maryanne Luciano, of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Westchester County (Carey, J.), rendered June 24, 1994, convicting him of robbery in the first degree, grand larceny in the third degree, and attempted robbery in the first degree, upon a jury verdict, and sentencing him to concurrent indeterminate terms of 15 years to life imprisonment on the conviction of robbery in the first degree, 10 years to life imprisonment on the conviction of grand larceny in the third degree, and 12 years to life imprisonment on the conviction of attempted robbery in the first degree.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed upon the conviction of grand larceny in the third degree under the second count of the indictment; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for resentencing on that count in compliance with Penal Law §§ 60.05 and 70.06.

The defense counsel's failure to take action on the defendant's desire to testify before the Grand Jury does not, on this record, amount to the denial of the effective assistance of counsel (see, People v. Wiggins, 89 N.Y.2d 872, 653 N.Y.S.2d 91, 675 N.E.2d 845; People v. Rogers, 228 A.D.2d 623, 645 N.Y.S.2d 497; People v. Sturgis, 199 A.D.2d 549, 606 N.Y.S.2d 241; cf., People v. Jimenez, 180 A.D.2d 757, 580 N.Y.S.2d 393).

However, as the People correctly concede, the defendant was improperly sentenced as a persistent violent felony offender upon his conviction for grand larceny in the third degree, when he should have been sentenced as a second felony offender on that count (see, Penal Law §§ 60.05, 70.06). Therefore, the matter is remitted to the County Court, Westchester County, for proper sentencing on that count. The sentences imposed on the remaining counts were not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either not properly before this court on appeal (see, People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509...