PEOPLE v. SINGH (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered November 13, 2000, convicting him of criminal possession of stolen property in the third degree (two counts) and unauthorized use of a vehicle in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

At the defendant's first trial, the jury reached a partial verdict, inter alia, convicting the defendant of unauthorized use of a vehicle in the third degree (see Penal Law § 165.05[1] ) relating to one of three stolen vehicles, a BMW. The jury did not reach a verdict on the charges of criminal possession of stolen property in the third degree (see Penal Law § 165.50) relating to the BMW and another vehicle, an Acura, or on the count charging unauthorized use of a vehicle in the second degree concerning the Acura.   The defendant argues that unauthorized use of a vehicle in the third degree is a lesser-included offense of criminal possession of stolen property in the third degree, and that his conviction on the count charging unauthorized use of a vehicle in the third degree relating to the BMW constituted an acquittal on the count charging criminal possession of stolen property in the third degree (see CPL 300.40[3][b], 300.50[4] ) relating to that vehicle.   Thus, he argues, with respect to the BMW, it was error to retry him on the count charging criminal possession of stolen property in the third degree (cf. People v. Fuller, 96 N.Y.2d 881, 883-884, 730 N.Y.S.2d 773, 756 N.E.2d 61).

 The defendant's argument rests on a faulty premise.   Unauthorized use of a vehicle in the third degree is not a lesser-included offense of criminal possession of stolen property in the third degree because it is theoretically possible to commit criminal possession of stolen property in the third degree without “concomitantly committing, by the same conduct,” unauthorized use of a vehicle in the third degree (CPL 1.20[37];  see People v. Glover, 57 N.Y.2d 61, 64, 453 N.Y.S.2d 660, 439 N.E.2d 376;  People v. Battey, 6 A.D.3d 544, 544-545, 774 N.Y.S.2d 398;  Matter of Raul M., 248 A.D.2d 336, 336-337, 670 N.Y.S.2d 830;  People v. Edwards, 104 A.D.2d 448, 449-450, 478 N.Y.S.2d 966).   Consequently, with respect to the BMW, conviction on the count charging unauthorized use of a vehicle in the third degree was not an acquittal of the charge of criminal possession of stolen property in the third degree, and retrial on the count charging criminal possession of stolen property in the third degree relating to the BMW was proper (cf. People v. Fuller, supra at 884, 730 N.Y.S.2d 773, 756 N.E.2d 61).

 The defendant's constitutional challenge to his sentencing as a persistent felony offender pursuant to Penal Law § 70.10 and CPL 400.20 is unpreserved for appellate review and, in any event, is without merit (see People v. Rivera, 5 N.Y.3d 61, 67, 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;  People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160,;  People v. Kross, 26 A.D.3d 518, 518-519, 811 N.Y.S.2d 568).

Moreover, the sentence imposed did not constitute cruel and unusual punishment and was not excessive (see People v. Broadie, 37 N.Y.2d 100, 118-119, 371 N.Y.S.2d 471, 332 N.E.2d 338 cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287;  People v. Thomas, 255 A.D.2d 468, 468-469, 682 N.Y.S.2d 51;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.