PEOPLE v. THOMAS (2006)

Judgment, Supreme Court, New York County (Michael J. Obus, J. on dismissal motion;  James A. Yates, J. at jury trial and sentence), rendered April 16, 2003, convicting defendant of rape in the first degree (four counts), sodomy in the first degree (four counts), kidnapping in the second degree (four counts), attempted rape in the first degree, sexual abuse in the first degree (eleven counts), and sodomy in the third degree (two counts), and sentencing him, as a persistent violent felony offender, to an aggregate term of 500 years to life, unanimously affirmed.

The motion court correctly determined that the notice provisions of CPL 190.50(5) do not obligate the People to provide notice of separate charges presented to a grand jury which are not included in a pending felony complaint (People v. Clark, 240 A.D.2d 325, 660 N.Y.S.2d 114 [1997], lv. denied 91 N.Y.2d 890, 669 N.Y.S.2d 4, 691 N.E.2d 1030 [1998];  see also People v. Pressley, 259 A.D.2d 416, 688 N.Y.S.2d 20 [1999], affd. 94 N.Y.2d 935, 708 N.Y.S.2d 32, 729 N.E.2d 689 [2000] ).   This rule not only applies where the additional charges considered by the grand jury arose from the same incident as those in the felony complaint, but also where they arise from a separate incident that is not the subject of a felony complaint (see e.g. People v. Choi, 210 A.D.2d 495, 496, 620 N.Y.S.2d 131 [1994], lv. denied 85 N.Y.2d 971, 629 N.Y.S.2d 731, 653 N.E.2d 627 [1995];  People v. Feliciano, 207 A.D.2d 803, 616 N.Y.S.2d 529 [1994], lv. denied 84 N.Y.2d 1031, 623 N.Y.S.2d 187, 647 N.E.2d 459 [1995] ).   In any event, we note that at the time in question defendant was on notice that he was a suspect in the additional cases.

To the extent defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice.   Were we to review it, we would find it to be without merit.

Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 [2001], cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001] ).   Defendant's mandatory sentence was based on his prior convictions (see Almendarez-Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).