PEOPLE v. FLETCHER (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered June 25, 1996, convicting him of robbery in the first degree, robbery in the second degree, and grand larceny in the fourth degree, upon a jury verdict, and sentencing him to concurrent indeterminate terms of 12 1/2 year to 25 years imprisonment for his convictions of robbery in the first degree and robbery in the second degree and one to three years imprisonment for his conviction of grand larceny in the fourth degree.

ORDERED that the judgment is modified, on the law, by reducing the sentence imposed for the defendant's conviction of robbery in the second degree from 12 1/2 to 25 years imprisonment to 7 1/2 to 15 years imprisonment;  as so modified, the judgment is affirmed.

 The defendant's claims regarding the People's failure to provide notice pursuant to CPL 710.30 of their intent to use his statements at trial are unpreserved for appellate review (see, CPL 470.05[2];  People v. Clark, 41 N.Y.2d 612, 394 N.Y.S.2d 593, 363 N.E.2d 319, cert. denied 434 U.S. 864, 98 S.Ct. 195, 54 L.Ed.2d 138).   In any event, contrary to the defendant's contention, the trial court properly admitted into evidence certain statements made by the defendant for which notice under CPL 710.30 had not been given.   The evidence elicited either falls within the pedigree exception to the notice requirement (see, Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528;  People v. Nelson, 147 A.D.2d 774, 537 N.Y.S.2d 995) or the statements are not within the purview of CPL 710.30 as they were made voluntarily (see, People v. Greer, 42 N.Y.2d 170, 397 N.Y.S.2d 613, 366 N.E.2d 273;  People v. Talamo, 211 A.D.2d 520, 621 N.Y.S.2d 563).   Moreover, since the defendant moved to suppress these statements and the trial court determined that the statements were admissible after a hearing, the defendant waived his right to raise the claim that he did not receive notice of the People's intent to use the statements (see, CPL 710.30[3];  People v. Kirkland, 89 N.Y.2d 903, 653 N.Y.S.2d 256, 675 N.E.2d 1208;  People v. Berry, 242 A.D.2d 540, 661 N.Y.S.2d 671).

 However, while the defendant was properly sentenced for his conviction of robbery in the first degree, his sentence for robbery in the second degree was unlawfully imposed.   In the case of a second violent felony offender, the sentence for robbery in the second degree, a class C felony, cannot exceed an indeterminate term of 7 1/2 to 15 years imprisonment (see, Penal Law §§ 70.04[3][b];  160.10).   Here, the defendant was sentenced to 12 1/2 to 25 years on that count.   We note that this matter “need not be remitted for resentencing inasmuch as the court evidently intended to sentence the defendant to the maximum possible term with respect to this count” (People v. Persaud, 166 A.D.2d 466, 468, 560 N.Y.S.2d 685;  see, People v. Azzara, 138 A.D.2d 495, 525 N.Y.S.2d 890).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.