People v. Wright

• Decision Date: 10 June 2011
• Citation: 924 N.Y.S.2d 701,85 A.D.3d 1642,2011 N.Y. Slip Op. 04954
• Parties: The PEOPLE of the State of New York, Respondent,v.Dwayne D. WRIGHT, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1642

924 N.Y.S.2d 701

2011 N.Y. Slip Op. 04954

The PEOPLE of the State of New York, Respondent,

v.Dwayne D. WRIGHT, Defendant–Appellant.

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

June 10, 2011.

Peter J. Digiorgio, Jr., Utica, for Defendant–Appellant.Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of three counts of robbery in the first degree (Penal Law § 160.15[2]-[4] ) and one count each of robbery in the second degree (§ 160.10[2][b] ) and criminal possession of a weapon in the third degree (§ 265. 02[1] ). Defendant failed to preserve for our review his contention that the third and fourth counts of the indictment are duplicitous ( see People v. Sponburgh, 61 A.D.3d 1415, 877 N.Y.S.2d 585, lv. denied 12 N.Y.3d 929, 884 N.Y.S.2d 711, 912 N.E.2d 1092). In any event, that contention is without merit inasmuch as “[e]ach count of [the] indictment ... charge[s] one offense only” (CPL 200.30[1]; see generally People v. Keindl, 68 N.Y.2d 410, 417, 509 N.Y.S.2d 790, 502 N.E.2d 577, rearg. denied 69 N.Y.2d 823, 513 N.Y.S.2d 1028, 506 N.E.2d 539). We agree with defendant, however, that the fourth count of the indictment, charging defendant with robbery in the second degree (Penal Law § 160.10[2][b] ), is an inclusory concurrent count of robbery in the first degree as charged in the third count of the indictment (§ 160.15[4] ), and thus should be dismissed. Although defendant correctly concedes that he failed to preserve that contention for our review, we note that preservation is not required and thus that count four “must be dismissed as a matter of law because a verdict of guilty upon the greater [count] is deemed a dismissal of every lesser [inclusory concurrent count]” ( People v. Rodrigues, 74 A.D.3d 1818, 1819, 902 N.Y.S.2d 750, lv. denied 15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903, cert. denied ––– U.S. ––––, 131 S.Ct. 1505, 179 L.Ed.2d 330 [internal quotation marks omitted]; see CPL 300.40[3][b]; People v. Skinner, 211 A.D.2d 979, 980, 621 N.Y.S.2d 733, lv. denied 86 N.Y.2d 741, 631 N.Y.S.2d 621, 655 N.E.2d 718). We therefore modify the judgment accordingly.

Defendant failed to preserve for our review his contention that he was denied a fair trial based upon two instances of alleged prosecutorial misconduct on summation ( see CPL 470.05[2]; People v. Hill, 82 A.D.3d 1715, 919 N.Y.S.2d 688) and, in any event, that contention is without merit. The statement of the prosecutor in which he addressed the reason for the absence of a particular item of physical evidence from the evidence inventory was a “fair response to defense counsel's summation” ( People v. Anderson, 52 A.D.3d 1320, 1321, 859 N.Y.S.2d 852, lv. denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656), and it “ ‘did not exceed the broad bounds of rhetorical comment permissible in closing argument’ ” ( People v. Williams, 28 A.D.3d 1059, 1061, 813 N.Y.S.2d 606, affd. 8 N.Y.3d 854, 831 N.Y.S.2d 367, 863 N.E.2d 588, quoting People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d 9, 430 N.E.2d 885). Although we agree with defendant that the reference by the prosecutor to defendant's parole status was improper in light of County Court's ruling concerning such status, we conclude that defendant was not deprived of a fair trial by that single instance of misconduct ( see generally Galloway, 54 N.Y.2d at 401, 446 N.Y.S.2d 9, 430 N.E.2d 885; People v. Seeler, 63 A.D.3d 1595, 1596–1597, 880 N.Y.S.2d 425, lv. denied 13 N.Y.3d 838, 890 N.Y.S.2d 454, 918 N.E.2d 969).

We reject the further contention of defendant that the court's Sandoval ruling constitutes an abuse of discretion. The record establishes that the court, upon properly weighing the probative value of defendant's prior convictions against their potential for prejudice ( see People v. Freeney, 291 A.D.2d 913, 914, 737 N.Y.S.2d 751, lv. denied 98 N.Y.2d 637, 744 N.Y.S.2d 766, 771 N.E.2d 839), ruled that the People were limited to cross-examining defendant only with respect to the fact that he had two prior felony convictions ( see generally People v. Hayes, 97 N.Y.2d 203, 207–208, 738 N.Y.S.2d 663, 764 N.E.2d 963). We likewise reject defendant's contention that he was denied effective assistance of counsel ( see generally People v. Baker, 14 N.Y.3d 266, 270–271, 899 N.Y.S.2d 733, 926 N.E.2d 240; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). We further conclude that the evidence is legally sufficient to support defendant's conviction of the three counts of robbery in the first degree and the count of criminal possession of a weapon in the third degree ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672) and, viewing the evidence in light of the elements of those crimes as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Finally, we reject defendant's contention...