PEOPLE v. GOMEZ (2025)

Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered April 7, 2017, as amended April 21, 2017, convicting defendant, after a jury trial, of seven counts of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent prison terms of 16 years to life, unanimously affirmed.  Order, same court and Justice, entered on or about April 10, 2019, which denied defendant's CPL 440.20 motion to set aside the sentence, unanimously affirmed.  Order, same court (Ruth Pickholz, J.), entered on or about June 2, 2023, which denied defendant's second CPL 440.20 motion to set aside the sentence, unanimously affirmed.

Defendant was not denied the right to be present for a material stage of his trial when counsel and the court had a preliminary, informal conference addressing potential jury charges (see People v. Collins, 99 N.Y.2d 14, 19, 750 N.Y.S.2d 814, 780 N.E.2d 499 [2002];  People v. Davis, 172 A.D.2d 273, 273, 568 N.Y.S.2d 95 [1st Dept. 1991], lv denied 78 N.Y.2d 921, 573 N.Y.S.2d 474, 577 N.E.2d 1066 [1991]).  The informal conference addressed a purely legal matter, namely whether there was a reasonable view of the evidence presented thus far supporting an intoxication instruction (see Collins at 19, 750 N.Y.S.2d 814, 780 N.E.2d 499).  In any event, the court made no determinations at that time, and shortly after the informal conference, it summarized the discussions for defendant, at which time defendant was offered an opportunity to speak with counsel and could have provided input if warranted (see People v. Johnson, 27 A.D.3d 238, 238, 810 N.Y.S.2d 190 [1st Dept. 2006], lv denied 7 N.Y.3d 790, 821 N.Y.S.2d 820, 854 N.E.2d 1284 [2006]).  The informal conference was merely preliminary to a subsequent proceeding in court which was held in defendant's presence, and defendant had an opportunity to provide meaningful input at that subsequent time as well (see People v. Torres, 61 A.D.3d 489, 490, 878 N.Y.S.2d 673 [1st Dept. 2009], lv denied 12 N.Y.3d 921, 884 N.Y.S.2d 702, 912 N.E.2d 1083 [2009]).

The court properly denied defendant's request to submit burglary in the third degree as a lesser included offense, since there was no reasonable view of the evidence that would support a finding that defendant committed only the lesser offense but not the greater (see generally People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982]).  More specifically, defendant failed to present any reasonable view of the evidence that these buildings’ common areas, which included the building lobbies, basements and a courtyard, were inaccessible to the residents of the buildings so as to render this a burglary of a building but not a “dwelling” (see People v. Joseph, 28 N.Y.3d 1003, 1006, 41 N.Y.S.3d 728, 64 N.E.3d 957 [2016];  People v. Carlucci, 196 A.D.3d 418, 419, 146 N.Y.S.3d 785 [1st Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 416, 175 N.E.3d 441 [2021]).

Defendant's argument that the court should have issued an expanded charge concerning the meaning of the term “dwelling” is unpreserved, and we decline to consider it in the interest of justice.  As an alternative holding, we find that the court properly declined to issue the expanded charge, as there was no evidence reasonably supporting it (see generally People v. J.L., 36 N.Y.3d 112, 119, 139 N.Y.S.3d 103, 163 N.E.3d 34 [2020];  People v. Jones, 73 N.Y.2d 902, 903, 539 N.Y.S.2d 286, 536 N.E.2d 615 [1989]).

We have considered and rejected defendant's constitutional challenges to his sentence and his claim that his sentence is irrational (see People v. Cortes, 193 A.D.3d 659, 660, 143 N.Y.S.3d 188 [1st Dept. 2021], lv denied 37 N.Y.3d 964, 148 N.Y.S.3d 750, 171 N.E.3d 226 [2021];  People v. Corey, 190 A.D.3d 620, 621, 140 N.Y.S.3d 505 [1st Dept. 2021], lv denied 37 N.Y.3d 964, 148 N.Y.S.3d 750, 171 N.E.3d 226 [2021];  People v. Johnson, 38 A.D.3d 1057, 1059, 832 N.Y.S.2d 312 [3d Dept. 2007]).

We do not reach defendant's arguments concerning whether the United States Supreme Court's holding in Erlinger v. United States, 602 U.S. 821, 144 S.Ct. 1840, 219 L.Ed.2d 451 (2024) renders unconstitutional the sentencing procedures used to determine that he was a persistent violent felony offender.  Defendant did not contest the relevant periods of incarceration as a threshold matter (see People v. Hernandez, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 00904 [2025]);  and, defendant waived the issue and relinquished the argument that the People had not established the dates of incarceration (see People v. Stanton, 234 A.D.3d 602, 225 N.Y.S.3d 257 [1st Dept. 2025]).  We also note that even if defendant had established a constitutional violation premised on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), such violation would be subject to harmless error review (see People v. Kozlowski, 11 N.Y.3d 223, 250, 869 N.Y.S.2d 848, 898 N.E.2d 891 [2008], cert denied 556 U.S. 1282, 129 S.Ct. 2775, 174 L.Ed.2d 272 [2009]).  We find that any alleged error in this case would be harmless.