PEOPLE v. GOSTON (2004)

On appeal from a judgment convicting him following a jury trial of two counts of robbery in the first degree (Penal Law § 160.15[2], [4] ) and one count of criminal possession of a weapon in the third degree (§ 265.02[4] ), defendant contends that County Court erred in denying his motion to suppress identification testimony.   We reject that contention and conclude that the court properly determined that the showup identification, conducted in geographic and temporal proximity to the crime, was not unduly suggestive (see People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337;  see also People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).   We further reject defendant's contention that the court's Sandoval ruling constitutes an abuse of discretion.  “The trial court did not abuse the discretion vested in it, in determining the extent of the cross-examination bearing on defendant's credibility, and the exercise of that discretion should not be disturbed” (People v. Greer, 42 N.Y.2d 170, 176, 397 N.Y.S.2d 613, 366 N.E.2d 273;  see People v. Schwartzman, 24 N.Y.2d 241, 244-245, 299 N.Y.S.2d 817, 247 N.E.2d 642, mot. to amend remittitur granted 24 N.Y.2d 914, 301 N.Y.S.2d 644, 249 N.E.2d 483, rearg. denied 24 N.Y.2d 916, 301 N.Y.S.2d 1025, 249 N.E.2d 484, cert. denied 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96).

 Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, in any event, that contention lacks merit (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Contrary to the contention of defendant, the court properly denied his request to charge robbery in the third degree as a lesser included offense of robbery in the first degree.  “[T]here is no reasonable view of the evidence that a deadly weapon-here, a loaded firearm-was not used to commit the [robbery].   Thus, there is no reasonable view of the evidence to support a finding that defendant committed the lesser offense but not the greater” (People v. Pross, 302 A.D.2d 895, 898, 754 N.Y.S.2d 792, lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 122, 790 N.E.2d 296;  see People v. Whitfield, 287 A.D.2d 393, 731 N.Y.S.2d 452, lv. denied 97 N.Y.2d 689, 738 N.Y.S.2d 305, 764 N.E.2d 409;  see generally People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).

 We reject defendant's contention that reversal is required based on a Rosario violation.   Although the prosecutor delayed in disclosing certain Rosario material until after one witness had testified, “[r]eversal based upon the People's delay in disclosing Rosario material is necessary only when defendant demonstrates that he has been substantially prejudiced by the delay” (People v. Goncalves, 239 A.D.2d 923, 923, 659 N.Y.S.2d 596, lv. denied 91 N.Y.2d 873, 668 N.Y.S.2d 571, 691 N.E.2d 643;  see People v. Banch, 80 N.Y.2d 610, 617-618, 593 N.Y.S.2d 491, 608 N.E.2d 1069;  People v. Ranghelle, 69 N.Y.2d 56, 63, 511 N.Y.S.2d 580, 503 N.E.2d 1011).   Defendant has failed to establish any prejudice resulting from the delay, and we therefore conclude that the court properly denied his CPL 330.30 motion to set aside the verdict on that ground.

Defendant failed to preserve for our review his contention that his sentencing as a second felony offender was in contravention of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and, in any event, that contention lacks merit (see People v. Rosen, 96 N.Y.2d 329, 334, 728 N.Y.S.2d 407, 752 N.E.2d 844;  People v. Simmons, 298 A.D.2d 468, 469, 748 N.Y.S.2d 168, lv. denied 100 N.Y.2d 644, 645, 769 N.Y.S.2d 210, 211, 801 N.E.2d 431, 432).

Although we reject defendant's contention that the sentence is unduly harsh and severe, we conclude that the sentence imposed on count four of the indictment is illegal.   Criminal possession of a weapon in the third degree under subdivision (4) of Penal Law § 265.02 is a violent felony offense (see § 70.02[1][c];  § 265.02[4] ).   Where, as here, a defendant has been found to be a second felony offender and the crime is a violent felony, the court “must” impose a determinate sentence (§ 70.06[6] ).   Thus, the indeterminate term of incarceration imposed on that count of the indictment is illegal.   We therefore modify the judgment by vacating the sentence imposed on count four of the indictment, and we remit the matter to County Court for resentencing on that count.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence imposed on criminal possession of a weapon in the third degree and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing on count four of the indictment.

MEMORANDUM: