Opinion
06-22-2017
The PEOPLE of the State of New York, Respondent, v. Keith HALL, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel) and Weil, Gotshal & Manges, LLP, New York (Matthew S. Connors of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel) and Weil, Gotshal & Manges, LLP, New York (Matthew S. Connors of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered February 19, 2014, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 12 years to life, unanimously modified, on the law, to the extent of vacating the persistent violent felony offender adjudication only with respect to the weapon possession conviction, and remanding for resentencing on that conviction as a second felony offender, and otherwise affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations, including its evaluation of the victim's explanation for initially giving false accounts of the incident.
The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002] ; People v. Walker, 83 N.Y.2d 455, 458–459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994] ; People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216 [1983] ). Defendant's theft-related convictions were highly relevant to his credibility. Defendant's Sandoval motion preserved a challenge to the court's substantive ruling, but failed to preserve defendant's present procedural arguments concerning the court's determination of the motion, and we decline to review them in the interest of justice. As an alternative holding, we find these procedural claims to be unsupported by a fair reading of the record, and unavailing.
The court providently exercised its discretion in denying defendant's CPL 210.40 motion to dismiss the charges in furtherance of justice. After considering the statutory factors in totality, we find no "compelling factor" (CPL 210.40[1] ) that would warrant that "extraordinary remedy" (People v. Moye, 302 A.D.2d 610, 611, 755 N.Y.S.2d 307 [2d Dept.2003] ), "which we have cautioned should be exercised sparingly" (People v. Keith R., 95 A.D.3d 65, 67, 941 N.Y.S.2d 76 [1st Dept.2012], lv. denied 19 N.Y.3d 963, 950 N.Y.S.2d 115, 973 N.E.2d 213 [2012] [internal quotation marks omitted]; see also People v. Marshall, 106 A.D.3d 1, 11, 961 N.Y.S.2d 447 [1st Dept.2013], lv. denied 21 N.Y.3d 1006, 971 N.Y.S.2d 258, 993 N.E.2d 1280 [2013] ).
As the People concede, defendant's present conviction of criminal possession of a weapon in the third degree was under a subdivision (Penal Law § 265.02 [1 ] ) not constituting a violent felony (Penal Law § 70.02[1][c] ). Accordingly, defendant could not be sentenced as a persistent violent felony offender on that conviction. The parties agree that the matter should be remanded for resentencing on that conviction.
SWEENY, J.P., MAZZARELLI, ANDRIAS, MOSKOWITZ, GISCHE, JJ., concur.