Opinion
2011-11-15
The PEOPLE, etc., respondent,v.Paul SALAMONE, appellant.
Nicholas E. Rishler, Niskayuna, N.Y., for appellant.Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.
Nicholas E. Rishler, Niskayuna, N.Y., for appellant.Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.
Appeals by the defendant from two judgments of the County Court, Suffolk County (Hudson, J.), both rendered October 6, 2009, convicting him of burglary in the third degree (five counts), grand larceny in the third degree, and scheme to defraud in the first degree under Indictment No. 2040/08, and burglary in the third degree (two counts) and grand larceny in the fourth degree (two counts) under Indictment No. 472/09, upon a jury verdict, and imposing sentences.
ORDERED that the judgments are affirmed, and the matter is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 460.50(5).
Contrary to the defendant's contention, the County Court did not err in refusing to instruct the jury with a specific charge on the mistake of fact defense since the court's instructions on the elements of burglary in the third degree and grand larceny in the third and fourth degrees adequately covered the defense theory ( see People v. Williams, 81 N.Y.2d 303, 316–317, 598 N.Y.S.2d 167, 614 N.E.2d 730; People v. Kowalewski, 39 A.D.3d 770, 771, 835 N.Y.S.2d 291; People v. Grimaldi, 6 A.D.3d 722, 722–723, 775 N.Y.S.2d 190; People v. Storms, 2 A.D.3d 757, 757, 769 N.Y.S.2d 595; People v. Banks, 248 A.D.2d 183, 183, 670 N.Y.S.2d 764). The defendant's contention that he was entitled to a charge on “claim of right” with respect to the grand larceny counts is unpreserved for appellate review ( see CPL 470.05[2]; People v. Ace, 51 A.D.3d 1379, 1380, 856 N.Y.S.2d 792; People v. Fuller, 252 A.D.2d 353, 675 N.Y.S.2d 533). In any event, viewing the evidence in the light most favorable to the defendant ( see People v. Taylor, 80 N.Y.2d 1, 12, 586 N.Y.S.2d 545, 598 N.E.2d 693), we find that there was no reasonable view of the evidence which supported issuing the charge on the “claim of right” defense with respect to the grand larceny counts ( cf. People v. Engstrom, 86 A.D.3d 580, 582, 926 N.Y.S.2d 664).
The defendant's challenges to the alleged instances of prosecutorial misconduct in summation are unpreserved for appellate review ( see CPL 470.05 [2]; People v. Masaguilar, 86 A.D.3d 619, 620, 926 N.Y.S.2d 914; People v. Muniz, 44 A.D.3d 1074, 1074, 844 N.Y.S.2d 396; People v. Jenkins, 38 A.D.3d 566, 567, 831 N.Y.S.2d 494). In any event, although some of the prosecutor's comments in summation were improper, they constituted harmless error ( see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Ortiz, 46 A.D.3d 580, 581, 846 N.Y.S.2d 370).
The defendant received meaningful representation ( see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584).
Contrary to the defendant's contention, the imposition of consecutive sentences was not illegal ( see Penal Law § 70.25[2] ). Each of the burglaries and grand larcenies committed by the defendant was a separate and distinct act committed against a separate victim ( see People v. Truesdell, 70 N.Y.2d 809, 811, 523 N.Y.S.2d 429, 517 N.E.2d 1315; People v. Dieppa, 285 A.D.2d 558, 558–559, 727 N.Y.S.2d 898; People v. Rosa, 249 A.D.2d 334, 335, 670 N.Y.S.2d 348; People v. White, 192 A.D.2d 736, 737, 597 N.Y.S.2d 117; People v. Higgins, 137 A.D.2d 620, 620–621, 524 N.Y.S.2d 508).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).