PEOPLE v. CANADY (2004)

Judgment, Supreme Court, New York County (Ira Beal, J.), rendered March 2, 2000, convicting defendant, after a jury trial, of three counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to three concurrent terms of 20 years to life, unanimously affirmed.

Defendant's claim that the court should have charged the affirmative defense to first-degree robbery (Penal Law § 160.15[4] ) is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would reject it.   It is clear that defendant's strategy was to argue that in each incident the evidence established, at most, that he used only verbal threats and that he was thus guilty of no higher crime than third-degree robbery, a crime submitted to the jury at defendant's request.   It is equally clear that defendant had no interest in pursuing the affirmative defense.   Had that defense been successful, it would have resulted in a conviction of second-degree robbery, which, unlike third-degree robbery, is a violent felony carrying, in defendant's situation, a mandatory life sentence as a persistent violent felony offender.   It would have been inappropriate for the court to interfere with defendant's chosen strategy by charging the affirmative defense, even though the People had requested it (see People v. DeGina, 72 N.Y.2d 768, 537 N.Y.S.2d 8, 533 N.E.2d 1037 [1988];  People v. Huynh, 223 A.D.2d 463, 637 N.Y.S.2d 62 [1996], lv. denied 88 N.Y.2d 849, 644 N.Y.S.2d 695, 667 N.E.2d 345 [1996];  People v. Baker, 209 A.D.2d 293, 618 N.Y.S.2d 368 [1994], lv. denied 84 N.Y.2d 1028, 623 N.Y.S.2d 184, 647 N.E.2d 456 [1995] ).

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 triggered solely by his prior convictions (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).