Opinion
13871
Decided and Entered: October 30, 2003.
Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered March 25, 2002, upon a verdict convicting defendant of the crimes of resisting arrest, assault in the second degree, petit larceny, criminal mischief in the fourth degree and burglary in the second degree.
Mitch Kessler, Cohoes, for appellant.
Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), for respondent.
Before: Mercure, J.P., Spain, Carpinello, Mugglin and, Lahtinen, JJ.
MEMORANDUM AND ORDER
On January 18, 2001, defendant was seen outside an apartment building in the City of Schenectady, Schenectady County, that was later found to have been burglarized. Several days later, when two uniformed police officers attempted to arrest defendant, he resisted, and one of the officers suffered an injury to his thumb. Defendant was indicted on charges of burglary in the second degree, criminal mischief in the fourth degree and petit larceny stemming from the burglary. He was also indicted on charges of assault in the second degree and resisting arrest, and County Court granted a motion to consolidate the two indictments. After a jury trial, defendant was convicted of all charges and sentenced, as a second violent felony offender, to consecutive prison terms of 15 years on the burglary conviction and seven years on the assault conviction, with lesser concurrent sentences on the remaining convictions.
On this appeal, defendant initially faults the consolidation of the indictments, contending that there was no basis for joinder. We disagree. Two indictments based upon separate criminal transactions may be joined, in the trial court's discretion, when evidence of a crime charged in one indictment is material and admissible as evidence of a crime charged in the second (see CPL 200.20 [b]; [4];People v. Lane, 56 N.Y.2d 1, 8). Here, evidence that defendant committed the burglary was clearly admissible to establish his motive for later resisting arrest (see People v. Till, 87 N.Y.2d 835, 837;People v. Hubert, 237 A.D.2d 756, 757, lv denied 90 N.Y.2d 859), a sufficient basis for joinder of the two indictments. Since defendant failed to make a convincing showing of prejudice due to County Court's consolidation of the indictments, we see no abuse of discretion (see People v. Lane, supra at 8-9; People v. Beverly, 277 A.D.2d 718, 719, lv denied 96 N.Y.2d 780).
Nor did defendant receive ineffective assistance of counsel. Defendant identifies several alleged trial errors that he maintains cumulatively worked to deprive him of a fair trial. However, defendant has failed "to demonstrate the absence of strategic or other legitimate explanations" for these alleged errors (People v. Rivera, 71 N.Y.2d 705, 709;see People v. Mejias, 293 A.D.2d 819, 820, lv denied 98 N.Y.2d 699; People v. Richardson, 193 A.D.2d 969, 971, lv denied 82 N.Y.2d 725). Viewing the evidence, the law and the totality of the circumstances at the time of his trial, we conclude that defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712; People v. Baldi, 54 N.Y.2d 137, 147).
Defendant's remaining contentions merit little discussion. We see no error in County Court's Sandoval ruling permitting inquiry regarding charges dismissed in satisfaction of other charges, rather than on the merits (see People v. Rivera, 101 A.D.2d 981, 982, affd 65 N.Y.2d 661; People v. Alberti, 77 A.D.2d 602, 603, lv denied 51 N.Y.2d 728, cert denied 449 U.S. 1018; see also People v. Dragoon, 256 A.D.2d 653, 654, lv denied 92 N.Y.2d 1048). Further, viewing the evidence in the light most favorable to the prosecution (see People v. Acosta, 80 N.Y.2d 665, 672), the testimony was legally sufficient to support defendant's assault conviction (see Penal Law * 10.00 [9]; * 120.05 [3]; People v. Greene, 70 N.Y.2d 860, 862-863; People v. Walley, 296 A.D.2d 717, 717).
Finally, we reject defendant's claim that his sentences are harsh and excessive. While these sentences are certainly greater than the sentence proposed as part of a plea agreement rejected by him, they are within the permissible statutory ranges (see Penal Law ** 70.02, 70.04), and there is nothing to suggest that County Court's imposition of the maximum was in retaliation for the decision to proceed to trial (see People v. Franklin, 288 A.D.2d 751, 756, lv denied 97 N.Y.2d 728;People v. Morgan, 253 A.D.2d 946, 946, lv denied 92 N.Y.2d 950). In view of defendant's extensive criminal history, these sentences were not an abuse of discretion, and we see no extraordinary circumstances warranting their modification in the interest of justice (see People v. Spencer, 272 A.D.2d 682, 685, lv denied 95 N.Y.2d 858; People v. Dolphy, 257 A.D.2d 681, 685, lv denied 93 N.Y.2d 872).
Mercure, J.P., Spain, Mugglin and Lahtinen, JJ., concur.
ORDERED that the judgment is affirmed.