Opinion
1015 KA 18-01045
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Artie HUTSON, Defendant-Appellant.
JAY H. SCHWITZMAN, BROOKLYN, FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
JAY H. SCHWITZMAN, BROOKLYN, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals by permission of this Court pursuant to CPL 460.15 from an order denying his pro se motion pursuant to CPL 440.20 seeking, inter alia, to set aside his sentence imposed on March 15, 2013. According to defendant, the sentence imposed on the second count of the corresponding indictment, charging criminal possession of stolen property in the third degree ( Penal Law § 165.50 ), must run concurrently with the sentence imposed on the first count of that indictment, charging scheme to defraud in the first degree (§ 190.65 [1] [b]), because the individual act of possessing the stolen merchandise at issue constitutes part of the scheme to defraud under the circumstances of this case (see e.g. People v. Sanchez , 195 A.D.2d 578, 580, 600 N.Y.S.2d 946 [2d Dept. 1993], mod on other grounds 84 N.Y.2d 440, 618 N.Y.S.2d 887, 643 N.E.2d 509 [1994] ; People v. Whitehead , 84 A.D.3d 1128, 1131, 923 N.Y.S.2d 212 [2d Dept. 2011], lv denied 17 N.Y.3d 823, 929 N.Y.S.2d 812, 954 N.E.2d 103 [2011] ; People v. D'Anna, 163 A.D.2d 810, 810-811, 559 N.Y.S.2d 410 [4th Dept. 1990] ). "[D]efendant's failure to provide a sufficient record precludes appellate review of his [contention]" ( People v. Thomas , 46 A.D.3d 712, 712-713, 848 N.Y.S.2d 239 [2d Dept. 2007], lv denied 10 N.Y.3d 940, 862 N.Y.S.2d 346, 892 N.E.2d 412 [2008], reconsideration denied 11 N.Y.3d 742, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ; see generally Matter of Santoshia L. , 202 A.D.2d 1027, 1028, 609 N.Y.S.2d 724 [4th Dept. 1994] ).
We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the order.