PEOPLE v. GREENE (2008)

Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J.), rendered September 25, 2003, convicting him of criminal possession of a forged instrument in the second degree and attempted grand larceny in the fourth degree, upon a jury verdict, and sentencing him, as a persistent felony offender, to an indeterminate term of imprisonment of 15 years to life for criminal possession of a forged instrument in the second degree and a determinate term of imprisonment of one year for attempted grand larceny in the fourth degree.

ORDERED that the judgment is modified, on the facts and as a matter of discretion in the interest of justice, by vacating the defendant's adjudication as a persistent felony offender, adjudicating him a second felony offender, and reducing his term of imprisonment for criminal possession of a forged instrument in the second degree from an indeterminate term of imprisonment of 15 years to life to an indeterminate term of imprisonment of 3 1/212 to 7 years;  as so modified, the judgment is affirmed.

 The trial court providently exercised its discretion in denying, without a hearing, the defendant's pro se motion pursuant to CPL 330.30 to set aside the verdict after investigating the defendant's claim and ascertaining that it was baseless (see People v. Rodriguez, 100 N.Y.2d 30, 760 N.Y.S.2d 74, 790 N.E.2d 247;  People v. Rodriguez, 71 N.Y.2d 214, 218 n. 1, 524 N.Y.S.2d 422, 519 N.E.2d 333;  People v. Eley, 31 A.D.3d 662, 820 N.Y.S.2d 75).

 The defendant's contention that his right to equal protection was violated because he was charged with criminal possession of a forged instrument in the second degree (see Penal Law § 170.25), rather than criminal possession of a forged instrument in the third degree (see Penal Law § 170.20) is without merit.   The law “provides the prosecutor with broad discretion to decide what crimes to charge” (People v. Urbaez, 10 N.Y.3d 773, 775, 856 N.Y.S.2d 520, 886 N.E.2d 142) and “overlapping” criminal statutes do not violate the defendant's constitutional rights (People v. Eboli, 34 N.Y.2d 281, 287, 357 N.Y.S.2d 435, 313 N.E.2d 746).   Here, the “forged instrument” that the defendant allegedly possessed was a forged American Express credit card.   Thus, the defendant's possession of the card fell squarely within the conduct proscribed by Penal Law § 170.25.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant's claim that his waiver of his right to be present at conferences between the trial court and individual jurors during the voir dire was ineffective is without merit (see People v. Edwards, 288 A.D.2d 320, 733 N.Y.S.2d 612;  People v. Broadwater, 248 A.D.2d 719, 671 N.Y.S.2d 99).   His objections to portions of the trial court's instructions to the jury are unpreserved for appellate review (see CPL 470.05[2] ), and we decline to review them in the exercise of our interest of justice jurisdiction.

To the extent the defendant claims that his trial counsel was ineffective, the record demonstrates that he was afforded meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Jogie, 51 A.D.3d 1038, 1039, 858 N.Y.S.2d 386).

The defendant's contention that the sentencing procedure adjudicating him a persistent felony offender whose “history and character ․ and the nature and circumstances of his criminal conduct” warrant extended incarceration and where “life-time supervision [of the defendant] will best serve the public interest” (Penal Law § 70.10[2] ) was unconstitutional, is unpreserved for appellate review and, in any event, is without merit (see People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473).

However, the totality of the evidence adduced at the persistent felony offender hearing, although warranting the defendant's adjudication as a second felony offender, did not warrant his adjudication as a persistent felony offender (see Penal Law § 70.10[2] ).   Accordingly, we reduce the sentence for criminal possession of a forged instrument in the second degree-a class D felony-to an indeterminate term of imprisonment of 3 1/2 to 7 years, which is the maximum permissible sentence for a second felony offender convicted of that crime (see Penal Law § 70.06[3][d];  People v. Williams, 239 A.D.2d 269, 658 N.Y.S.2d 264).