Opinion
KA 16–00348 950
10-04-2019
The PEOPLE of the State of New York, Respondent, v. Charles E. BAKER, Also Known as Chaz, Defendant–Appellant. (Appeal No. 1.)
WILLIAMS HEINL MOODY BUSCHMAN, P.C., AUBURN (MARIO J. GUTIERREZ OF COUNSEL), FOR DEFENDANT–APPELLANT. CHARLES E. BAKER, DEFENDANT–APPELLANT PRO SE. JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
WILLIAMS HEINL MOODY BUSCHMAN, P.C., AUBURN (MARIO J. GUTIERREZ OF COUNSEL), FOR DEFENDANT–APPELLANT.
CHARLES E. BAKER, DEFENDANT–APPELLANT PRO SE.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from two judgments arising from his involvement in a series of burglaries. In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, burglary in the third degree ( Penal Law § 140.20 ), grand larceny in the fourth degree (§ 155.30[1] ), attempted grand larceny in the third degree (§§ 110.00, 155.35[2] ), and criminal mischief in the third degree (§ 145.05[2] ). In appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the third degree (§§ 110.00, 265.02[1] ). We affirm in each appeal.
Addressing first appeal No. 1, to the extent that defendant contends in his pro se supplemental brief that the conviction is not supported by legally sufficient evidence, we reject that contention. The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to support the conviction (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Viewing the evidence in light of the elements of the 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 [2007] ), we also reject defendant's contention in his main and pro se supplemental briefs that the verdict is 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 ).
Defendant further contends in his main brief that County Court erred in allowing the People to impeach their own witness. Although we agree with defendant that the court erred (see CPL 60.35[1] ; People v. Fitzpatrick, 40 N.Y.2d 44, 51–52, 386 N.Y.S.2d 28, 351 N.E.2d 675 [1976] ; People v. Sanders, 2 A.D.3d 1420, 1420, 768 N.Y.S.2d 900 [4th Dept. 2003] ), we nonetheless conclude that the error is harmless (see People v. Saez, 69 N.Y.2d 802, 804, 513 N.Y.S.2d 380, 505 N.E.2d 945 [1987] ; People v. Cartledge, 50 A.D.3d 1555, 1555–1556, 855 N.Y.S.2d 797 [4th Dept. 2008], lv denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008] ). Defendant failed to preserve for our review his contention in his main brief that the verdict is repugnant (see People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280 [1985] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). We have reviewed defendant's remaining contention in his pro se supplemental brief and conclude that it does not require reversal or modification of the judgment in appeal No. 1.
Defendant failed to preserve for our review his further contention in his main brief in appeal No. 1 that, in determining the sentence to be imposed, the court penalized him for exercising his right to trial (see People v. Pope, 141 A.D.3d 1111, 1112, 33 N.Y.S.3d 812 [4th Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] ). In any event, that contention lacks merit (see id. ). Finally, contrary to defendant's contention in his main brief in both appeals, the sentences are not unduly harsh or severe.