Opinion
KA 01-01182
October 1, 2002.
Appeal from a judgment of Onondaga County Court (Fahey, J.), entered May 15, 2001, convicting defendant after a jury trial of, inter alia, murder in the second degree (two counts).
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ROBERT P. RICKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
TAJUAN PAUL, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by directing that the sentence imposed under the count of criminal possession of a weapon in the second degree shall run concurrently with the sentences imposed for robbery in the first degree under counts 10 through 13 of the indictment, as renumbered by County Court, and as modified the judgment is affirmed.
Memorandum:
Defendants were convicted following a joint jury trial of crimes arising from two separate robberies of an illegal gambling house in Syracuse in April 2000. Contrary to the contentions of both defendants, County Court properly refused to submit to the jury the issue whether two prosecution witnesses were accomplices to the second robbery for purposes of the statute requiring corroboration of accomplice testimony ( see CPL 60.22). "[T]he record is devoid of proof that the witnesses participated in any way in the preparations, or were at all involved in the [second robbery] itself" ( People v. Napolitano, 215 A.D.2d 782, 782, lv denied 86 N.Y.2d 799; see People v. Brooks, 34 N.Y.2d 475, 479-480). Although one of the two witnesses was an accomplice after the fact, "[t]he corroboration requirement of CPL 60.22 (1) does not apply to that witness because he learned of [the second robbery] after [it was] committed" ( People v. Pepe, 259 A.D.2d 949, 949, lv denied 93 N.Y.2d 1024).
The further contention of each defendant that his respective conviction of two counts of burglary in the second degree (Penal Law § 140.25 [a]) is not supported by legally sufficient evidence is unpreserved for our review ( see People v. Gray, 86 N.Y.2d 10, 19), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Defendants' contentions that the court erred in instructing the jury on the issue of identification are also unpreserved for our review ( see 470.05 [2]). In any event, those contentions are without merit ( see People v. Whalen, 59 N.Y.2d 273, 279). Also without merit are defendants' contentions that the count of the indictment charging criminal possession of a weapon in the third degree (Penal Law § 265.02) should be dismissed as an inclusory concurrent count of the count charging criminal possession of a weapon in the second degree (§ 265.03 [2]; see CPL 300.30; People v. Saulters, 255 A.D.2d 896, lv denied 92 N.Y.2d 1038; People v. Baro, 236 A.D.2d 307, 307-308, lv denied 89 N.Y.2d 1032).
The contention of defendant Tajuan Paul that the court erred in instructing the jury on his alibi defense is unpreserved for our review ( see CPL 470.05). In any event, that contention is without merit ( see People v. Victor, 62 N.Y.2d 374, 377-378). The contention of defendant Shondell Paul that the prosecutor committed reversible error in summation also is unpreserved for our review ( see 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). We have reviewed the contentions of defendant Tajuan Paul in his pro se supplemental brief and conclude that those contentions are without merit.
Finally, although the sentences are not unduly harsh or severe, the sentence imposed upon each defendant under the count of criminal possession of a weapon in the second degree is legal to the extent that it is to run consecutively to the sentences imposed under counts one through nine but is illegal to the extent that it is to run consecutively to the sentences imposed upon each defendant for robbery in the first degree (Penal Law § 160.15) under counts 10 through 13 of the indictment, as renumbered by the court ( see § 70.25 [2]; People v. Spells, 277 A.D.2d 476, 479, lv denied 95 N.Y.2d 969, 96 N.Y.2d 763; People v. Sessoms, 200 A.D.2d 850, 851, lv denied 83 N.Y.2d 915) . We therefore modify the judgments by directing that the sentence imposed upon each defendant under the count of criminal possession of a weapon in the second degree shall run concurrently with the sentences imposed upon each defendant for robbery in the first degree under counts 10 though 13 of the indictment, as renumbered by the court.