Opinion
2012-04952 Ind. No. 408/09.
12-23-2015
The PEOPLE, etc., respondent, v. Phillip WRIGHT, appellant.
Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, and Jean M. Joyce of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Mark W. Vorkink of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, and Jean M. Joyce of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered April 27, 2012, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the Supreme Court erred in excusing, sua sponte, prior to the voir dire, certain prospective jurors who stated they were unable to render a verdict in the case due to their religious or personal beliefs (see CPL 470.052; People v. Cunningham, 119 A.D.3d 601, 601, 988 N.Y.S.2d 696; People v. Umana, 76 A.D.3d 1111, 908 N.Y.S.2d 244). Contrary to the defendant's contention, the allegedly improper excusal of those jurors did not constitute a mode of proceedings error exempting him from the rules of preservation (see People v. Cunningham, 119 A.D.3d at 601–602, 988 N.Y.S.2d 696; People v. Casanova, 62 A.D.3d 88, 875 N.Y.S.2d 31; cf. People v. Ahmed, 66 N.Y.2d 307, 310, 496 N.Y.S.2d 984, 487 N.E.2d 894). In any event, this procedure did not improperly delegate a judicial function to the panelists themselves and was a proper exercise of the court's discretion (see People v. Cunningham, 119 A.D.3d at 602, 988 N.Y.S.2d 696; People v. Umana, 76 A.D.3d at 1112, 908 N.Y.S.2d 244; People v. McGhee, 4 A.D.3d 485, 772 N.Y.S.2d 344; People v. Gayle, 238 A.D.2d 133, 655 N.Y.S.2d 513).
The Supreme Court providently exercised its discretion in denying the defendant's challenges for cause to three prospective jurors. The statements made by the three prospective jurors did not rise to the level of actual bias or otherwise indicate that they would be unable to render an impartial verdict (see People v. Glover, 69 A.D.3d 877, 878, 894 N.Y.S.2d 469; People v. Smith, 48 A.D.3d 489, 489, 849 N.Y.S.2d 789; People v. Archer, 210 A.D.2d 241, 619 N.Y.S.2d 738). Thus, there was no basis for the Supreme Court to administer an expurgatory oath or sustain the defendant's challenge for cause (see People v. Smith, 48 A.D.3d at 489, 849 N.Y.S.2d 789; People v. Ross, 12 A.D.3d 463, 783 N.Y.S.2d 845; People v. Archer, 210 A.D.2d at 241–242, 619 N.Y.S.2d 738).
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 and its progeny is without merit (see People v. Giles, 24 N.Y.3d 1066, 1068, 2 N.Y.S.3d 30, 25 N.E.3d 943; People v. Battles, 16 N.Y.3d 54, 59, 917 N.Y.S.2d 601, 942 N.E.2d 1026; People v. Bell, 15 N.Y.3d 935, 936, 915 N.Y.S.2d 208, 940 N.E.2d 913; People v. Quinones, 12 N.Y.3d 116, 129–130, 879 N.Y.S.2d 1, 906 N.E.2d 1033; People v. Rivera, 5 N.Y.3d 61, 67, 800 N.Y.S.2d 51, 833 N.E.2d 194; People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844). Similarly without merit is the defendant's contention that Penal Law § 70.10 is unconstitutional as applied to him because the Supreme Court considered facts other than his prior convictions in adjudicating him a persistent felony offender. Rather, the Supreme Court based the defendant's adjudication as a persistent felony offender solely on his prior convictions, facts found by the jury in the instant case, and the Supreme Court's discretionary evaluation of the seriousness of the defendant's criminal history (see Penal Law § 70.102; CPL 400.201 ). Moreover, the Supreme Court providently exercised its discretion in sentencing the defendant as a persistent felony offender (see Penal Law § 70.102; CPL 400.201; People v. Perry, 19 A.D.3d 619, 619, 800 N.Y.S.2d 25; People v. Maraia, 292 A.D.2d 635, 636, 739 N.Y.S.2d 602; People v. Page, 265 A.D.2d 580, 696 N.Y.S.2d 883). The Supreme Court's conclusion that the nature of the defendant's criminal conduct, his history, and his character warranted extended incarceration and lifetime supervision is amply supported by the record (see People v. Prindle, 129 A.D.3d 1506, 1507, 11 N.Y.S.3d 383; People v. Perry, 19 A.D.3d at 619, 800 N.Y.S.2d 25; People v. Maraia, 292 A.D.2d at 636, 739 N.Y.S.2d 602).