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People v. Taylor

Appellate Division of the Supreme Court of New York, Second Department
Nov 20, 1989
155 A.D.2d 630 (N.Y. App. Div. 1989)

Opinion

November 20, 1989

Appeal from the Supreme Court, Queens County (Cohen, J.).


Ordered that the judgment is affirmed.

The defendant contends that he was deprived of a fair trial by the failure of the prosecutor to comply with the 15-day notice requirement of CPL 710.30 (1) (a); (2). We note, and the People concede, that there was no good cause shown for the delay in notifying the defendant. Accordingly, it was error to permit both testimony of the lineup identification and the in-court identification, and to deny the defendant's motion to preclude (see, People v Bernier, 73 N.Y.2d 1006, 1008; People v McMullin, 70 N.Y.2d 855; People v Boughton, 70 N.Y.2d 854; People v O'Doherty, 70 N.Y.2d 479, 487-488). Nevertheless, as we have recently held in People v Pinney ( 136 A.D.2d 573, 574), the harmless error doctrine is applicable to this type of error where "both direct and circumstantial evidence unequivocally and overwhelmingly established" the defendant's guilt. The defendant gave a signed confession admitting complicity in the robberies in question. The codefendant was arrested in the stolen getaway car, which one of the complainants identified as having been involved in the robbery. Moreover, both complainants identified the gun used in the robbery and found in the defendant's possession at the time of his arrest. In view of this overwhelming evidence of the defendant's guilt, the failure of the People to comply with the CPL 710.30 notice requirement constituted harmless error.

The defendant also contends that the sentence imposed was excessive. Although the defendant received a greater sentence than that of the codefendant, who was sentenced on a negotiated plea, a discrepancy between the sentence imposed on a codefendant after a negotiated plea, and one imposed on a defendant who proceeds to trial, does not, without more, indicate that the latter is being punished for exercising the right to proceed to trial (see, People v Pena, 50 N.Y.2d 400, cert denied 449 U.S. 1087; People v Patterson, 106 A.D.2d 520). Nor is any such conclusion justified here. The two robberies were distinct and separate in place, time, and victims. Consecutive terms were therefore legally permissible (see, People v Alvarez, 135 A.D.2d 543, 544; People v Sanchez, 131 A.D.2d 606, 609). Moreover, the defendant, who was sentenced as a second violent felony offender, has an extensive criminal history spanning eight years. We conclude that the sentence imposed upon the defendant was not excessive (see, People v Suitte, 90 A.D.2d 80).

We have examined the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Thompson, Bracken and Rosenblatt, JJ., concur.


Summaries of

People v. Taylor

Appellate Division of the Supreme Court of New York, Second Department
Nov 20, 1989
155 A.D.2d 630 (N.Y. App. Div. 1989)
Case details for

People v. Taylor

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TYRONE TAYLOR…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 20, 1989

Citations

155 A.D.2d 630 (N.Y. App. Div. 1989)
548 N.Y.S.2d 45

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