People v. Smart

• Decision Date: 16 November 2012
• Citation: 954 N.Y.S.2d 322,100 A.D.3d 1473,2012 N.Y. Slip Op. 07782
• Parties: The PEOPLE of the State of New York, Respondent, v. Floyd L. SMART, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1473
954 N.Y.S.2d 322
2012 N.Y. Slip Op. 07782

The PEOPLE of the State of New York, Respondent,
v.
Floyd L. SMART, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 16, 2012.

[954 N.Y.S.2d 323]

Mark D. Funk, Rochester, for Defendant–Appellant.

Floyd L. Smart, Defendant–Appellant pro se.

Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.

[954 N.Y.S.2d 324]

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

[100 A.D.3d 1473]Defendant appeals from a judgment convicting [100 A.D.3d 1474]him upon a jury verdict of burglary in the second degree (Penal Law § 140.25[2] ). He was sentenced as a persistent felony offender to an indeterminate term of incarceration of 20 years to life. On appeal, defendant contends that the court reporter's readback of certain testimony in response to a jury note violated the procedures set forth in CPL 310.30 and constituted an improper delegation of judicial authority ( see generally People v. O'Rama, 78 N.Y.2d 270, 276–277, 574 N.Y.S.2d 159, 579 N.E.2d 189;People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894,rearg. denied67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558). Defendant further contends that, by sending a note to the jury during deliberations, County Court violated defendant's fundamental right to be present at a material stage of trial ( see generally People v. Mehmedi, 69 N.Y.2d 759, 760, 513 N.Y.S.2d 100, 505 N.E.2d 610,rearg. denied69 N.Y.2d 985, 516 N.Y.S.2d 1028, 509 N.E.2d 363). We note at the outset that, contrary to defendant's contention, the court did not thereby commit mode of proceedings errors such that preservation is not required. In responding to the jury note and directing the readback of testimony with respect to the note, the record establishes that the court fulfilled its “core responsibilities under CPL 310.30” ( People v. Tabb, 13 N.Y.3d 852, 853, 891 N.Y.S.2d 686, 920 N.E.2d 90;see People v. Geroyianis, 96 A.D.3d 1641, 1643, 946 N.Y.S.2d 803,lv. denied19 N.Y.3d 996, 951 N.Y.S.2d 472, 975 N.E.2d 918;People v. Bonner, 79 A.D.3d 1790, 1790–1791, 913 N.Y.S.2d 465,lv. denied17 N.Y.3d 792, 929 N.Y.S.2d 100, 952 N.E.2d 1095). Prior to responding to the jury note, the court read it into the record, solicited input from defense counsel, and described its proposed response. Then, when the jury clarified its request in the note, the court reporter read the relevant portion of the testimony into the record, under the supervision of the court and in the presence of defendant and the prosecutor. Defendant registered no objections. We thus conclude that defendant was required to preserve his contentions for our review, but he failed to do so ( see People v. Ramirez, 15 N.Y.3d 824, 825–826, 909 N.Y.S.2d 1, 935 N.E.2d 791;People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387;People v. Rivera, 83 A.D.3d 1370, 1370–1371, 919 N.Y.S.2d 691,lv. denied17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163;cf. People v. Kisoon, 8 N.Y.3d 129, 134–135, 831 N.Y.S.2d 738, 863 N.E.2d 990). In any event, defendant's contentions are without merit ( see People v. Hernandez, 94 N.Y.2d 552, 555–556, 708 N.Y.S.2d 34, 729 N.E.2d 691;People v. Harris, 76 N.Y.2d 810, 812, 559 N.Y.S.2d 966, 559 N.E.2d 660;People v. Gabot, 176 A.D.2d 894, 894–895, 575 N.Y.S.2d 358,lv. denied79 N.Y.2d 947, 583 N.Y.S.2d 201, 592 N.E.2d 809).

We reject defendant's further contention that the court erred in admitting the grand jury testimony of a witness after conducting a Sirois hearing ( see Matter of Holtzman v. Hellenbrand, 92 A.D.2d 405, 407–408, 460 N.Y.S.2d 591). The People presented clear and convincing evidence establishing that misconduct by defendant and his mother, who acted at defendant's behest, caused the witness to be unavailable to testify at trial ( see [100 A.D.3d 1475]People v. Geraci, 85 N.Y.2d 359, 370–371, 625 N.Y.S.2d 469, 649 N.E.2d 817;People v. Dickerson, 55 A.D.3d 1276, 1277, 864 N.Y.S.2d 628,lv. denied11 N.Y.3d 924, 874 N.Y.S.2d 9, 902 N.E.2d 443;People v. Major, 251 A.D.2d 999, 999–1000, 675 N.Y.S.2d 260,lv. denied

[954 N.Y.S.2d 325]

92 N.Y.2d 927, 680 N.Y.S.2d 469, 703 N.E.2d 281).

Defendant's challenge in his pro se supplemental brief to the constitutionality of New York's discretionary persistent felony offender sentencing statute is unpreserved for our review ( see People v. Rosen, 96 N.Y.2d 329, 333–335, 728 N.Y.S.2d 407, 752 N.E.2d 844), and in any event is without merit ( see People v. Quinones, 12 N.Y.3d 116, 122–131, 879 N.Y.S.2d 1, 906 N.E.2d 1033,cert. denied––– U.S. ––––, 130 S.Ct. 104, 175 L.Ed.2d 31;People v. Bastian, 83 A.D.3d 1468, 1470, 919 N.Y.S.2d 724,lv. denied17 N.Y.3d 813, 929 N.Y.S.2d 801, 954 N.E.2d 92).

We conclude, however, that, while the court did not abuse its discretion in sentencing defendant as a persistent felony offender, the sentence nevertheless is unduly harsh and severe. This Court “has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range” ( People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675;seeCPL 470.15[6][b] ). That “sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court” ( Delgado, 80 N.Y.2d at 783, 587 N.Y.S.2d 271, 599 N.E.2d 675). As a result, we may “ ‘substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence’ ” ( People v. Patel, 64 A.D.3d 1246, 1247, 881 N.Y.S.2d 793). We conclude that a reduction in sentence is appropriate under the circumstances presented here. Although burglary in the second degree is classified as a violent felony offense (Penal Law §§ 70.02[1][b]; 140.25[2] ), defendant did not employ actual violence in the instant offense despite being confronted by the woman whose residence he unlawfully entered. With the possible exception of two misdemeanor convictions of resisting arrest and criminal possession of a weapon dating to the 1980s, and a 2001 felony conviction of burglary in the second degree, the circumstances of which are unknown, it does not appear that defendant, despite a lengthy criminal record, has ever used or threatened violence in the commission of a crime. Therefore, as a matter of discretion in the interest of justice, we modify the judgment by reducing the sentence imposed to an indeterminate term of incarceration of 15 years to life ( seeCPL 470.20[6]; People v. Daggett, 88 A.D.3d 1296, 1298, 930 N.Y.S.2d 745,lv. denied18 N.Y.3d 956, 944 N.Y.S.2d 485, 967 N.E.2d 710;People v. Currier, 83 A.D.3d 1421, 1423, 919 N.Y.S.2d 733,amended on rearg.85 A.D.3d 1657, 924 N.Y.S.2d 872). We note, in response to the dissent, that we are only modifying the minimum term of defendant's sentence. Because we are not vacating the court's [100 A.D.3d 1476]discretionary sentencing of defendant as a persistent felony offender, the maximum term must remain unchanged. Given the lack of violence in defendant's criminal history, we conclude that 15 years is sufficient both as a minimum period of incarceration and for defendant to establish whether he has earned the right to parole.

We have reviewed defendant's remaining contentions in his pro se supplemental brief and conclude that none warrants reversal or further modification of the judgment.

It is hereby ORDERED that the judgment so appealed from is modified as a matter of discretion in the interest of justice by reducing the sentence imposed to an indeterminate term of incarceration of 15 years to life and as modified the judgment is affirmed.

[954 N.Y.S.2d 326]

All concur except SCUDDER, P.J., and MARTOCHE, J., who dissent in part and vote to affirm in the following Memorandum:

We respectfully dissent in part and would affirm the judgment of conviction without reducing defendant's sentence. In our view, the sentence is not unduly harsh or severe and thus, under the circumstances of this case, we see no reason to reduce the sentence as a matter of discretion in the interest of justice.

Defendant was charged with burglary in the second degree (Penal Law § 140.25[2] ) and, following a jury trial, was convicted of that charge. The conviction arose out of an incident in which defendant, with two others, entered a home and stole several items of property. Defendant was identified by the resident as one of the people...