Opinion
2012-11-21
The PEOPLE, etc., respondent, v. James BAZEMORE, appellant.
Steven Banks, New York, N.Y. (Martin M. Lucente of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Michael Brenner of counsel), for respondent.
Steven Banks, New York, N.Y. (Martin M. Lucente of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Michael Brenner of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Starkey, J.), imposed on September 4, 2008, upon his conviction of robbery in the third degree (two counts), upon a jury verdict, after remittitur from this Court for resentencing ( see People v. Bazemore, 52 A.D.3d 727, 860 N.Y.S.2d 602), the resentence being concurrent indeterminate terms of imprisonment of 17 years to life.
ORDERED that the resentence is modified, as a matter of discretion in the interest of justice, by reducing the resentence imposed for the convictions of robbery in the third degree under both counts from concurrent indeterminate terms of imprisonment of 17 years to life to concurrent indeterminate terms of imprisonment of 15 years to life.
The Supreme Court providently exercised its discretion in resentencing the defendant as a persistent felony offender ( see Penal Law § 70.10[2]; People v. Maxwell, 22 A.D.3d 607, 802 N.Y.S.2d 505;People v. Perry, 19 A.D.3d 619, 800 N.Y.S.2d 25;People v. Thomas, 255 A.D.2d 468, 682 N.Y.S.2d 51). The Supreme Court's conclusion that the nature of the defendant's criminal conduct, his history, and his character warranted extended incarceration and life time supervision is supported by the record ( see People v. Maxwell, 22 A.D.3d at 607, 802 N.Y.S.2d 505;People v. Perry, 19 A.D.3d at 619, 800 N.Y.S.2d 25;People v. Thomas, 255 A.D.2d at 469, 682 N.Y.S.2d 51). Nevertheless, under the circumstances of this case, the resentence imposed was excessive to the extent indicated ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's contention that his adjudication as a persistent felony offender was unconstitutional pursuant to Apprendi v. New Jersey (530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435) is without merit ( see People v. Battles, 16 N.Y.3d 54, 59, 917 N.Y.S.2d 601, 942 N.E.2d 1026,cert. denied––– U.S. ––––, 132 S.Ct. 123, 181 L.Ed.2d 46;People v. Quinones, 12 N.Y.3d 116, 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. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194,cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473;People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844,cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160;People v. Watts, 89 A.D.3d 965, 966, 932 N.Y.S.2d 728,lv. denied 18 N.Y.3d 887, 939 N.Y.S.2d 757, 963 N.E.2d 134;People v. Aguayo, 85 A.D.3d 809, 810, 924 N.Y.S.2d 817).