PEOPLE v. MANILA

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Sithixay MANILA, Defendant and Appellant.

No. F046611.

Decided: April 28, 2006

Susan Burke, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

This case again raises the unsettled question of whether Penal Code section 654 requires the trial court to stay one of two sentences imposed for the same act where one of the sentences was for an enhancement, not a punishment for a freestanding offense.   We hold that section 654 was applicable because the enhancement was based on defendant's conduct in committing the crime-not a status such as having a record of prior convictions.   We also reject the People's argument that the two sentences were not based on a single indivisible course of conduct with a single objective, but accept the People's contention regarding which of the sentences must be stayed.   We will order stayed the sentence for being a felon in possession of a firearm, which the court ordered to be served concurrently, and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

Police entered the home of defendant Sithixay Manila's parents to search for narcotics pursuant to a search warrant.   Defendant fled through the back door and was apprehended outside.

In a bedroom, officers found a loaded handgun under a mattress, $1,500 in $100 bills in a shirt in the closet, two cell phones, two digital scales, and a bag containing five bindles of an off-white substance.   Mail addressed to defendant and a wallet containing defendant's California identification card were also in the room.   More bindles of an off-white substance were found elsewhere in the house.   The contents of the bindles were later tested and found to be cocaine base and methamphetamine.   Defendant's mother told officers the bedroom was defendant's, though she later said other people also used it.

The District Attorney filed an information charging four counts:  (1) possession of cocaine base for sale (Health & Saf.Code, § 11351.5);  (2) possession of methamphetamine for sale (Health & Saf.Code, § 11378);  (3) possession of a firearm by a convicted felon (Pen.Code, § 12021, subd. (a)(1));  and (4) resisting arrest (Pen.Code, § 148, subd. (a)(1)).   The information further alleged that defendant was personally armed with a firearm in the commission of the crimes charged in counts 1 and 2 (Pen.Code, § 12022, subd. (c)), and that defendant had a prior strike (a voluntary manslaughter conviction) within the meaning of the three strikes law (Pen.Code, § 1170.12, subd. (c)(1)).

A jury found defendant guilty of counts 1, 2, and 4 and found true the allegation of being armed in the commission of the drug offenses.   In a separate proceeding, the court found defendant guilty of count 3 and found the prior-strike allegation true.   It sentenced defendant to a term of 12 years on count 1, consisting of the middle term of four years, doubled for the prior strike, and four years for the enhancement of being armed.   The court imposed concurrent sentences for the remaining charges, including a four-year concurrent sentence for being a felon in possession of a firearm, consisting of the middle term of two years, doubled for the prior strike.

DISCUSSION

 Defendant's appeal is addressed only to his sentence.   He contends that the concurrent sentence for being a felon in possession of a firearm and the consecutive sentence for the enhancement for being armed in the commission of the cocaine possession offense were for the same criminal act.   Consequently, he alleges one of them (specifically, the consecutive one for the enhancement) should have been stayed pursuant to section 654.

 Section 654 provides:

“An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision․”

This statute bars double punishment not only for a single criminal act but for a single indivisible course of conduct in which the defendant had only one criminal intent or objective.  (People v. Bauer (1969) 1 Cal.3d 368, 376, 82 Cal.Rptr. 357, 461 P.2d 637;  In re Ward (1966) 64 Cal.2d 672, 675-676, 51 Cal.Rptr. 272, 414 P.2d 400;  Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.)   We review under the substantial-evidence standard the court's factual finding, implicit or explicit, of whether or not there was a single criminal act or a course of conduct with a single criminal objective.  (People v. Coleman (1989) 48 Cal.3d 112, 162, 255 Cal.Rptr. 813, 768 P.2d 32;  People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408, 273 Cal.Rptr. 253.)   As always, we review the trial court's conclusions of law de novo.  (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1687, 40 Cal.Rptr.2d 125.)

I. Application of section 654 to a conduct enhancement

 Before turning to the question of whether defendant was subjected to double punishment impermissible under section 654, we must decide whether section 654 is applicable in the first place.   The People argue that it is not because section 654 does not apply to sentences imposed under enhancement statutes, or at least not to those imposed under the particular statute creating the enhancement for being armed in the commission of a crime.

We conclude that section 654 applies.   As we will explain, section 654 applies to enhancements based on conduct in which the defendant engaged in committing the crime, but not those based on defendant's status, such as the status of having a record of prior convictions.   Contrary to the People's argument, being armed with a firearm in the commission of a crime is conduct;  it is not a status.

The issue of the applicability of section 654 to enhancements is unsettled.   We once stated that “section 654 generally does not apply to enhancements because they do not define a crime or offense but relate only to the penalty imposed under certain circumstances.”  (People v. Parrish (1985) 170 Cal.App.3d 336, 344, 217 Cal.Rptr. 700.)   Later, in an opinion subsequently ordered depublished by the Supreme Court, we stated that our previous statement was dictum and declined to follow it.  (People v. Lozano (Jan. 24, 2001, F032226) review den. and opn. ordered nonpub. Apr. 18, 2001, S095776.)   Other Courts of Appeal have also reached divergent conclusions.  (See, e.g., People v. Price (1992) 4 Cal.App.4th 1272, 1277, 6 Cal.Rptr.2d 263 [“ ‘[I]t is now well-accepted that section 654 applies to enhancements' ”];  People v. Warinner (1988) 200 Cal.App.3d 1352, 1355, 247 Cal.Rptr. 197 [“Section 654 has long been construed as inapplicable to enhancements because enhancements do not define an offense”].)

The Supreme Court's opinion in People v. Coronado (1995) 12 Cal.4th 145, 48 Cal.Rptr.2d 77, 906 P.2d 1232 points toward a solution.   In that case, the defendant was convicted of driving under the influence.   He admitted he had three prior convictions for driving under the influence and served three prior prison terms for felony convictions.   One of the prior prison terms arose from the third driving-under-the-influence conviction.   The trial court used that prior conviction to elevate the current offense to a felony and also used the associated prison term to impose one of three one-year enhancements under Penal Code section 667.5, subdivision (b).  This court and the Supreme Court both affirmed the sentence, rejecting the defendant's argument that section 654 forbade the court to use the prior offense and associated prison term to increase his sentence twice-first by elevating the current offense to a felony and then by imposing the additional year.  (People v. Coronado, supra, at pp. 149, 159, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)

In reaching this conclusion, the Supreme Court divided sentence enhancements into two categories:

“[W]e observe there are at least two types of sentence enhancements:  (1) those which go to the nature of the offender;  and (2) those which go to the nature of the offense.  [Citations.]  Prior prison term enhancements ․ fall into the first category and are attributable to the defendant's status as a repeat offender.  [Citations.]  The second category of enhancements ․ arise from the circumstances of the crime and typically focus on what the defendant did when the current offense was committed.”  (People v. Coronado, supra, 12 Cal.4th at pp. 156-157, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)

The enhancements at issue in the case were based on prior offenses and were status enhancements to which section 654 did not apply.   The court explained that status enhancements like these “are not imposed for ‘acts or omissions' within the meaning of the statute․” (People v. Coronado, supra, 12 Cal.4th at p. 157, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)   These enhancements “are attributable to the defendant's status as a repeat offender [citations];  they are not attributable to the underlying criminal conduct which gave rise to the defendant's prior and current convictions.”   Therefore, “[b]ecause the repeat offender (recidivist) enhancement imposed here does not implicate multiple punishment of an act or omission, section 654 is inapplicable.”  (Id. at p. 158, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)

The court expressed no opinion about whether section 654 applies to the second category, enhancements based on conduct rather than status.  (People v. Coronado, supra, 12 Cal.4th at p. 157, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)   The court's reasoning, however, strongly implies that section 654 does apply to those enhancements.   In the court's view, section 654 does not apply to status enhancements because, by its terms, section 654 only prohibits double punishment for a single criminal “act or omission.”  (Pen.Code, § 654.)   A prior conviction enhancement, for instance, imposes punishment for the status of having priors or being a recidivist, not for an act or omission.   A conduct or nature-of-the-offense enhancement, by contrast, does impose punishment for an act or omission, “typically ․ what the defendant did when the current offense was committed.”  (People v. Coronado, supra, 12 Cal.4th at p. 157, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)   It is only a short logical step to the conclusion that section 654 applies to conduct enhancements.

The Fourth District Court of Appeal took that step in People v. Arndt (1999) 76 Cal.App.4th 387, 90 Cal.Rptr.2d 415.   There, the defendant was convicted of driving under the influence.   Three victims were injured in the accident the defendant caused.   The defendant received a total of five sentence enhancements (three under Pen.Code, § 12022.7 and two under Veh.Code, § 23182) for causing bodily injury to the three victims.  (People v. Arndt, supra, at pp. 391-392, 90 Cal.Rptr.2d 415.)   Holding that the bodily injury enhancements “ ‘focus[ed] on what the defendant did when the current offense was committed’ ” within the meaning of the Supreme Court's opinion in Coronado, the court held that section 654 applied and ordered two of the enhancements stayed.  (People v. Arndt, supra, at pp. 395, 397, 399, 90 Cal.Rptr.2d 415.)

We see no reason not to take the same approach in this case.   The enhancement for being armed in the commission of the underlying drug offense is within the second category of enhancements the Supreme Court defined in Coronado, those that pertain to what defendant did when the current offense was committed.   The enhancement at issue here is set forth in Penal Code section 12022, subdivision (c):

“[A]ny person who is personally armed with a firearm in the commission of a violation or attempted violation of [any of several specific sections of the Health and Safety Code], shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.”

In Coronado, the court identified Penal Code section 12022.5 as an example of an enhancement in the second category.  (People v. Coronado, supra, 12 Cal.4th at p. 157, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)  Penal Code section 12022.5, subdivision (a), provides:

“[A]ny person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.”

Penal Code sections 12022, subdivision (c), and 12022.5, subdivision (a), do not differ in any way relevant to the question before us.   Both impose enhanced punishment for defendant's conduct in the commission of the underlying crime.

There is no merit to the People's contention that in this case the enhancement under section 12022, subdivision (c), was not a conduct enhancement under Coronado because it pertained to defendant's “possessory status.”   The fact that the gun was under the mattress, not in defendant's hand, is irrelevant.   Being armed with a firearm in the commission of the crime was one of the “circumstances of the crime” and something defendant “did when the current offense was committed”;  it was not a part of the “nature of the offender.”   (People v. Coronado, supra, 12 Cal.4th at pp. 156-157, 48 Cal.Rptr.2d 77, 906 P.2d 1232, italics omitted.)   To describe being armed with a firearm as a status is merely manipulating words.   One could as easily, and as implausibly, call “being a cause of great bodily injury” a status when there is no question that it is conduct.

For these reasons, we conclude that section 654 applies to the question of whether the enhancement for being armed and the sentence for being a felon in possession of a firearm could both properly be imposed.   We proceed to the section 654 analysis.

II. Same act or course of conduct

The first question to be answered in applying section 654 is whether the court imposed two punishments for one criminal act or an indivisible course of conduct with one criminal objective.   On the basis of the gun found under the mattress, defendant was punished for possessing a gun while a convicted felon and for being armed with the gun in the commission of the cocaine offense.   Defendant contends that the record contains no evidence that he possessed the gun at any time other than when he was possessing drugs for the purpose of sale, or that he possessed the gun pursuant to any other objective than the objective of possessing drugs for the purpose of sale.   The People argue that because defendant could have possessed the gun before the drug possession offense began and could have had it for other purposes, “it is reasonable to infer” that he did, and that we should draw that inference to prevent him from receiving “a sentencing windfall.”   We hold that the record contains insufficient evidence to support the trial court's implicit finding of more than one criminal act or objective.

People v. Venegas (1970) 10 Cal.App.3d 814, 89 Cal.Rptr. 103 strongly supports our conclusion.   There, the defendant was convicted of assault with a deadly weapon with intent to commit murder and possession of a firearm by a convicted felon.   He received a prison sentence for each count.  (Id. at p. 817, 89 Cal.Rptr. 103.)   The Court of Appeal held that there was only one act of possessing the weapon, so the felon-in-possession offense did not constitute a “divisible transaction” from the assault.  “[W]here the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved,” the court stated.   But “[h]ere the evidence shows a possession only at the time defendant shot” the victim.   Accordingly, imposition of sentence on both counts “constituted multiple punishment proscribed by section 654.”  (Id. at p. 821, 89 Cal.Rptr. 103.)

Here, there was no evidence of any possession of the gun “distinctly antecedent and separate” from the possession in the commission of the drug offense.   Consequently, there was no evidentiary support for an inference that separate acts of possessing the gun, or possession of the gun pursuant to separate criminal objectives, existed to support distinct punishments for the felon-in-possession offense and the enhancement for being armed in the commission of the drug offense.

The People claim that separate objectives were shown by a police officer's opinion testimony at trial that narcotics dealers use guns to protect themselves as well as the drugs.   The testimony was as follows:

“Q. You also found a loaded gun.   Does a gun have any relationship to narcotic sales?

“A. Sure.

“Q. What's the relationship?

“A. Well, a lot of crimes go unreported when drug dealers are basically ripped off.   That happens quite a lot.   So narcotics dealers have guns for protection.

“Q. Protection of what?

“A. Other individuals, both buyers and other drug dealers.

“Q. Do they use it to protect the narcotics themselves?

“A. Themselves and the narcotics.

“Q. And what about money, does it protect a narcotics dealer with money?

“A. Sure.”

We do not think this testimony constitutes sufficient evidence to show two objectives, one of protecting the drugs and another of protecting the drug dealer.   It could as easily be argued that the testimony established five objectives:  protecting the drugs, protecting the dealer, protecting the dealer's money, protecting the buyer, and protecting other dealers.   The Supreme Court has warned against “pars[ing] the objectives too finely” in analyzing potentially impermissible multiple punishments under section 654.  (People v. Britt (2004) 32 Cal.4th 944, 953, 12 Cal.Rptr.3d 66, 87 P.3d 812 [only one objective in sex offender's failure to notify authorities when he moved, so only one punishment permissible for two offenses of leaving old location and arriving in new without notification, despite argument that defendant intended to deceive authorities in both the old and new locations].)   The People here parse objectives too finely.

The cases on which the People rely, People v. Ratcliff, supra, 223 Cal.App.3d 1401, 273 Cal.Rptr. 253 and People v. Harrison (1969) 1 Cal.App.3d 115, 81 Cal.Rptr. 396, are distinguishable.   In Ratcliff, the defendant committed two robberies about an hour and a half apart and was arrested half an hour after the second robbery.   He received sentence enhancements for being armed with a firearm in the commission of each robbery.   He was also convicted of and received an additional sentence for being a felon in possession of a firearm.  (People v. Ratcliff, supra, 223 Cal.App.3d at pp. 1404-1405, 1407-1408, 273 Cal.Rptr. 253.)   The Court of Appeal rejected his argument that imposing sentences for both being armed during the offenses and being a felon in possession of a firearm violated section 654.   Noting that the crime of being a felon in possession of a firearm “is committed the instant the felon in any way has a firearm within his control” (People v. Ratcliff, supra, at p. 1410, 273 Cal.Rptr. 253, italics omitted), the court relied on the fact that the defendant possessed the gun during the hour and a half after the first robbery ended and before the second began, as well as during the half hour after the second robbery ended and before he was arrested.   Consequently, “defendant's possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes.  Section 654 therefore does not prohibit separate punishments.” (Id. at p. 1413, 273 Cal.Rptr. 253.)   In the present case, by contrast, there was no evidence at all that defendant possessed the gun before the drug possession began or after it was completed.

The Ratcliff court distinguished some other cases which it described as barring multiple punishments because “fortuitous circumstances put the firearm in the defendant's hand only at the instant of committing another offense․” (People v. Ratcliff, supra, 223 Cal.App.3d at p. 1412, 273 Cal.Rptr. 253.)   The People in this case attempt to employ this language as a general standard for the application of section 654 in felon-in-possession cases, saying “the evidence ․ must show possession occurring only at the moment the offense has occurred” if multiple punishments are to be prohibited.   If this were correct, it would mean double punishment is allowed unless there is substantial evidence to show the defendant had only one objective or committed only one act.   As the Ratcliff court acknowledged, that is the opposite of the actual rule:  Double punishment is prohibited unless there is substantial evidence to show multiple criminal objectives.  (People v. Ratcliff, supra, at p. 1408, 273 Cal.Rptr. 253.)   There was no evidence like this here.

In Harrison, the defendant was convicted of one count of being a felon in possession of a firearm and one count of carrying a loaded firearm in a vehicle on a public street, based on a single traffic stop in which a loaded gun was found in his car.  (People v. Harrison, supra, 1 Cal.App.3d at p. 118, 81 Cal.Rptr. 396.)   The court rejected the defendant's argument that the imposition of sentences for both offenses violated section 654.   The court opined that the two statutes addressed two different concerns:  that of felons possessing guns, loaded or not, and that of anyone carrying a loaded gun in a public place.   Then it stated that, to violate the second statute, defendant had either to load the gun himself or let someone else load it.   This, the court concluded, meant that defendant committed two acts, loading the gun and carrying it, thus “bring[ing] our case outside the prohibition against double punishment for a single act or omission.”  (People v. Harrison, supra, at p. 122, 81 Cal.Rptr. 396.)   We need not comment on the persuasiveness of this reasoning 1 in observing that no comparable facts are present in this case.   The enhancement here did not require the gun to be loaded.   It only required that defendant be armed with the gun in the commission of the underlying drug offense.   There was no reason why his being a felon in possession of a firearm had to involve any act or objective other than those included in being armed in the commission of the drug offense.

We hold that the evidence was insufficient to show more than one “act” within the meaning of section 654.   One of the punishments must be stayed.

III. Which sentence should be stayed?

 Penal Code section 654 requires that a single act punishable under more than one provision “shall be punished under the provision that provides for the longest potential term of imprisonment․” The parties disagree about which provision that is in this case.   This is important as a practical matter because, although the court imposed sentences of four years under each provision, the enhancement for being armed was consecutive while the felon-in-possession sentence was concurrent.   We agree with the People's argument that the enhancement provision provided a longer potential term of imprisonment in this case, so the felon-in-possession sentence must be stayed.

The felon-in-possession statute provides that the offense is a felony.   (Pen.Code, § 12021, subd. (a).)  The sentence for a felony, if not otherwise specified, is 16 months, two years, or three years.  (Pen.Code, § 18.)   In this case, the sentence was subject to doubling under the three strikes law (Pen.Code, § 1170.12, subd. (c)(1)), so the maximum sentence for the felon-in-possession conviction was six years.   The enhancement for being armed with a firearm in the commission of the cocaine offense had a maximum term of five years.  (Pen.Code, § 12022, subd. (c).)  The three strikes law does not provide for the doubling of enhancements.  (People v. Hardy (1999) 73 Cal.App.4th 1429, 1433, 87 Cal.Rptr.2d 279.)

If these were the only pertinent provisions, the matter would be straightforward:  The maximum under the felon-in-possession statute, applied in conjunction with the three strikes law, is one year longer than the maximum for the enhancement for being armed, so the latter should be stayed and the former should remain.   It is also necessary, however, to take account of Penal Code section 1170.1.  Section 1170.1 provides that when a defendant is convicted of two felonies and consecutive sentences are imposed, one sentence is deemed the principal term and one the subordinate term.   The principal term is the “the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements.”   The subordinate term “shall consist of one-third of the middle term of imprisonment prescribed” for the consecutive offense, plus one-third of applicable specific enhancements.  (§ 1170.1, subd. (a).)  Because the felon-in-possession sentence would have been a subordinate term had it been imposed consecutively, we must count only one-third of the maximum when determining which is the longest potential sentence for section 654 purposes.   As noted, the maximum was the upper term of three years, doubled for the prior strike, or six years.   One third of that is two years.   Two years is less than five, so the felon-in-possession sentence is the one that should be stayed.

The reason we base the calculation on the assumption that the sentence is consecutive (even though it was, in reality, imposed concurrently) is that, according to People v. Kramer (2002) 29 Cal.4th 720, 128 Cal.Rptr.2d 407, 59 P.3d 738, section 654 must never be applied in a way that forces the sentencing court to choose the lesser aggregate total.   In that case, the defendant was convicted of assault with a firearm and discharging a firearm at an occupied vehicle.   He received a sentence of five years for the firing-at-a-vehicle charge.   The trial court also imposed a four-year enhancement for personal use of a firearm in the assault, but stayed the sentence for the underlying offense.   The Court of Appeal reversed, holding that the trial court was required to impose sentence for the firing-at-a-vehicle charge because it provided the longer maximum term, but could not impose the enhancement for the assault because it had stayed the sentence for the underlying offense.   (People v. Kramer, supra, at p. 722, 128 Cal.Rptr.2d 407, 59 P.3d 738.)

The Supreme Court reversed.   It explained that, although the crime of firing at a vehicle standing alone had a longer maximum term (seven years) than the crime of assault with a firearm (four years), the crime of assault with a firearm combined with the enhancement had a maximum that was longer still (14 years, consisting of 4 years for the underlying crime plus 10 years for the enhancement).  (People v. Kramer, supra, 29 Cal.4th at pp. 722-723, 128 Cal.Rptr.2d 407, 59 P.3d 738.)   The assault plus enhancement provided “the longest potential term of imprisonment” (Pen.Code, § 654), so it was the firing-at-a-vehicle sentence that should have been stayed.  (People v. Kramer, supra, at p. 723, 128 Cal.Rptr.2d 407, 59 P.3d 738.)   The court relied on the plain language of section 654, as well as on legislative history of the “longest potential term” clause that revealed a legislative intent to prohibit courts from using section 654 to sentence defendants under statutes providing shorter maximums than would be available absent the application of section 654.  (People v. Kramer, supra, at pp. 723-724, 128 Cal.Rptr.2d 407, 59 P.3d 738.)

In the present case, section 1170.1 affected the maximum total sentence the court could have imposed for the two counts while staying either the arming enhancement or the felon-in-possession sentence.   With the arming enhancement stayed, the maximum total the court could have imposed for the two counts was 12 years:  the doubled five-year upper term for the drug count plus one-third of the doubled three-year upper term for felon-in-possession.   With the felon-in-possession sentence stayed, by contrast, the maximum available would have been 15 years:  the doubled five-year upper term for the drug count plus five years for the arming enhancement.   Therefore, to avoid forcing the court to sentence under a shorter maximum than would be available absent section 654, it is necessary to impose the stay on the felon-in-possession sentence instead of the arming enhancement.

DISPOSITION

The judgment is modified to stay the sentence on count 3, possession of a firearm by a convicted felon (Pen.Code, § 12021, subd. (a)(1)).   The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections.   The judgment is affirmed in all other respects.

FOOTNOTES

1.   Cf. People v. Lopez (2004) 119 Cal.App.4th 132, 134, 137-138, 13 Cal.Rptr.3d 921 [section 654 violated by punishment for both unlawful possession of a gun and unlawful possession of the ammunition inside the gun;  multiple punishment would “parse the objectives too finely”].

WISEMAN, J.

VARTABEDIAN, Acting P.J., and LEVY, J., concur.