Opinion
02-22-2017
The PEOPLE, etc., respondent, v. Michael DINGLE, appellant.
Lynn W.L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Diane R. Eisner of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Diane R. Eisner of counsel), for respondent.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered November 5, 2014, convicting him of robbery in the first degree (two counts) and robbery in the third degree, upon a jury verdict, and sentencing him, as a persistent violent felony offender, to indeterminate terms of imprisonment of 20 years to life upon each of his convictions of robbery in the first degree, and, as a persistent felony offender, to an indeterminate term of imprisonment of 20 years to life upon his conviction of robbery in the third degree, to run consecutively to each other.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that all of the sentences imposed shall run concurrently with each other; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, defense counsel's failure to call the complainants as witnesses at the suppression hearing or move to reopen the hearing based upon their trial testimony did not deprive him of the effective assistance of counsel (see People v. Schultz, 128 A.D.3d 989, 989, 9 N.Y.S.3d 402 ; People v. Crespo, 117 A.D.3d 1538, 1539, 985 N.Y.S.2d 378 ; People v. Robles, 116 A.D.3d 1071, 983 N.Y.S.2d 885 ; People v. Jamison, 96 A.D.3d 571, 572, 946 N.Y.S.2d 569 ; People v. Gant, 26 A.D.3d 516, 517–518, 809 N.Y.S.2d 584 ). In addition, since the three subject robberies shared sufficiently distinctive circumstances to establish a modus operandi and, therefore, the evidence of the defendant's commission of each crime could be considered as evidence of his identity as the perpetrator of the other crime (see People v. Huggins, 134 A.D.3d 854, 855–856, 22 N.Y.S.3d 104 ; People v. Boone, 129 A.D.3d 1099, 1100, 11 N.Y.S.3d 687 ; People v. McRae, 276 A.D.2d 332, 332–333, 714 N.Y.S.2d 56 ), defense counsel was not ineffective for failing to object to comments made by the prosecutor which purportedly commingled the evidence (see People v. Boone, 129 A.D.3d at 1100, 11 N.Y.S.3d 687 ; People v. Currie, 117 A.D.3d 1074, 1075, 986 N.Y.S.2d 609 ; People v. Lewis, 101 A.D.3d 1154, 1154, 956 N.Y.S.2d 526 ).
The defendant's contention that the Supreme Court erred in failing to, sua sponte, charge the jury on the unreliability of cross-racial identification is unpreserved for appellate review since the defendant did not request such a charge or object to the charge as given (see CPL 470. 05[2]; People v. Rivera, 138 A.D.3d 1037, 1037, 30 N.Y.S.3d 226 ; People v. Cruz–Checo, 136 A.D.3d 840, 841, 24 N.Y.S.3d 526 ). In any event, under the circumstances of this case, a cross-racial identification charge would have been improper since the defendant never placed the issue in evidence during the trial (see People v. Alexander, 94 N.Y.2d 382, 385, 705 N.Y.S.2d 551, 727 N.E.2d 109 ; People v. Boone, 129 A.D.3d at 1099, 11 N.Y.S.3d 687 ; People v. Best, 120 A.D.3d 707, 708, 991 N.Y.S.2d 441 ; People v. German, 45 A.D.3d 861, 861, 846 N.Y.S.2d 348 ). Here, the court's charge correctly conveyed the applicable legal principles on witness credibility and identification testimony (see People v. Boone, 129 A.D.3d at 1099–1100, 11 N.Y.S.3d 687 ; People v. Washington, 56 A.D.3d 258, 259, 867 N.Y.S.2d 63 ; People v. Applewhite, 298 A.D.2d 136, 137, 748 N.Y.S.2d 4 ). Contrary to the defendant's contention, defense counsel's failure to request a cross-racial identification charge did not constitute ineffective assistance of counsel (see People v. Moore, 15 N.Y.3d 811, 813, 908 N.Y.S.2d 146, 934 N.E.2d 879 ; People v. Martin, 141 A.D.3d 734, 735, 35 N.Y.S.3d 476 ; People v. McClean, 137 A.D.3d 940, 941, 28 N.Y.S.3d 81 ).
The defendant's contention that his adjudication as a persistent felony offender for his conviction of robbery in the third degree 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 unpreserved for appellate review (see CPL 470.05 [2 ]; People v. Daniels, 5 N.Y.3d 738, 740, 800 N.Y.S.2d 369, 833 N.E.2d 704 ; People v. Minard, 125 A.D.3d 691, 692, 2 N.Y.S.3d 603 ), and, in any event, 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. Wells, 15 N.Y.3d 927, 928, 915 N.Y.S.2d 896, 941 N.E.2d 739 ; People v. Quinones, 12 N.Y.3d 116, 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 ). Moreover, the Supreme Court providently exercised its discretion in sentencing the defendant as a persistent felony offender on his conviction of robbery in the third degree (see Penal Law § 70.10[2] ; CPL 400.20[1] ; People v. Minard, 125 A.D.3d at 692, 2 N.Y.S.3d 603 ; People v. Dixon, 107 A.D.3d 735, 736, 967 N.Y.S.2d 87 ; People v. Bazemore, 100 A.D.3d 915, 915, 953 N.Y.S.2d 887 ; People v. Watts, 89 A.D.3d 965, 965, 932 N.Y.S.2d 728 ). The court's conclusion that the nature of the defendant's criminal conduct in the instant matter, his criminal record, and his character warranted extended incarceration and lifetime supervision is supported by the record (see People v. Dixon, 107 A.D.3d at 736, 967 N.Y.S.2d 87 ; People v. Bazemore, 100 A.D.3d at 915, 953 N.Y.S.2d 887 ). However, the sentence imposed was excessive to the extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).The defendant's remaining contentions are without merit.