Opinion
78 KA 19-00970
03-18-2022
The PEOPLE of the State of New York, Respondent, v. Durell MURRAY, Defendant-Appellant.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE, PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence of imprisonment imposed for kidnapping in the second degree under count one of the indictment to a determinate term of 15 years and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, one count of kidnapping in the second degree ( Penal Law § 135.20 ) and two counts of burglary in the second degree (§ 140.25 [1] [d]; [2]). Contrary to defendant's contention, his conviction of those crimes is supported by legally sufficient evidence (see People v. Dodt , 61 N.Y.2d 408, 411, 474 N.Y.S.2d 441, 462 N.E.2d 1159 [1984] ; People v. Govan , 268 A.D.2d 689, 690, 701 N.Y.S.2d 474 [3d Dept. 2000], lv denied 94 N.Y.2d 920, 708 N.Y.S.2d 359, 729 N.E.2d 1158 [2000] ; see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Moreover, viewing the evidence in light of the elements of kidnapping in the second degree and burglary in the second degree as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict convicting defendant of those crimes is not against the weight of the evidence (see People v. Harriott , 128 A.D.3d 470, 470, 9 N.Y.S.3d 228 [1st Dept. 2015], lv denied 26 N.Y.3d 1008, 20 N.Y.S.3d 549, 42 N.E.3d 219 [2015] ; People v. Balcom , 171 A.D.2d 1028, 1028-1029, 569 N.Y.S.2d 35 [4th Dept. 1991], lv denied 78 N.Y.2d 920, 573 N.Y.S.2d 472, 577 N.E.2d 1064 [1991] ; see also People v. Goldsmith , 127 A.D.2d 293, 295-296, 515 N.Y.S.2d 321 [3d Dept. 1987], lv denied 70 N.Y.2d 711, 519 N.Y.S.2d 1046, 513 N.E.2d 1314 [1987] ). Contrary to defendant's contention, the jury's decision to acquit him of kidnapping in the second degree in relation to the victim's son "does not provide [us] with the power to overturn [the jury's] verdict" convicting defendant of kidnapping in the second degree in relation to the victim herself ( People v. Nichols , 163 A.D.3d 39, 45, 78 N.Y.S.3d 590 [4th Dept. 2018] [internal quotation marks and emphasis omitted]; see People v. Rayam , 94 N.Y.2d 557, 561-563, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).
We agree with defendant, however, that the sentence is unduly harsh and severe under the circumstances of this case. Thus, we modify the judgment as a matter of discretion in the interest of justice by reducing the sentence on count one of the indictment to a determinate term of 15 years’ imprisonment, to be followed by the five years’ postrelease supervision imposed by County Court (see generally CPL 470.15 [6] [b] ). Defendant's remaining contentions do not warrant reversal or further modification of the judgment.