PEOPLE v. BILLUPS (2024)

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at suppression hearing;  Daniel P. FitzGerald, J. at jury trial and sentencing), rendered January 8, 2015, as amended January 9, 2015, convicting defendant of murder in the second degree, robbery in the first and second degrees, and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate prison term of 40 years to life, unanimously affirmed.

Defendant's challenge to the content of the court's instructions regarding corroboration of accomplice testimony is unpreserved, and we decline to review it in the interest of justice or to reconsider our determination in the appeal by his codefendant (People v. Moses, 155 A.D.3d 476, 65 N.Y.S.3d 15 [1st Dept. 2017], lv denied 30 N.Y.3d 1107, 77 N.Y.S.3d 6, 101 N.E.3d 392 [2018]).  Alternatively, the instructions, read as a whole, conveyed the appropriate principles (see People v. Reome, 15 N.Y.3d 188, 906 N.Y.S.2d 788, 933 N.E.2d 186 [2010]).

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v. Butler, 25 A.D.3d 499, 499, 808 N.Y.S.2d 670 [1st Dept. 2006], lv denied 7 N.Y.3d 786, 821 N.Y.S.2d 815, 854 N.E.2d 1279 [2006];  People v. Walker, 83 N.Y.2d 455, 458–459, 611 N.Y.S.2d 118, 633 N.E.2d 472 [1994]).  The court permitted limited inquiry about defendant's prior robbery conviction but forbade reference to the underlying criminal acts, and only permitted inquiry into the facts underlying a youthful offender adjudication which were highly probative of defendant's credibility.

Defendant did not preserve his challenge to cell site location information (see People v. Colon, 187 A.D.3d 647, 134 N.Y.S.3d 326 [1st Dept. 2020], lv denied 36 N.Y.3d 1096, 144 N.Y.S.3d 150, 167 N.E.3d 1285 [2021];  People v. Crum, 184 A.D.3d 454, 126 N.Y.S.3d 7 [1st Dept. 2020], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 404, 152 N.E.3d 1206 [2020]), and we decline to review it in the interest of justice.

We conclude that the court lawfully imposed a consecutive sentence for the conviction under Penal Law § 265.03(3) and perceive no basis premised upon the interest of justice to run the sentences concurrently.