Supreme Court, Appellate Division, Second Department, New York.
The PEOPLE, etc., respondent, v. James THOMAS, appellant.
Decided: January 22, 2008
A. GAIL PRUDENTI, P.J., STEPHEN G. CRANE, STEVEN W. FISHER, and WILLIAM E. McCARTHY, JJ.
Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Maria Park of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered June 23, 2005, convicting him of robbery in the first degree (two counts), grand larceny in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and sentencing him to consecutive indeterminate terms of 25 years to life imprisonment for the two counts of robbery in the first degree, and a consecutive indeterminate term of two to four years imprisonment for grand larceny in the fourth degree, to run concurrently with a determinate term of one year imprisonment for criminal possession of stolen property in the fourth degree.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by directing that the terms of imprisonment imposed shall run concurrently with each other; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in modifying its Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) to allow the prosecution to question him about the underlying facts of his prior felony convictions. The defendant testified that he pleaded guilty in prior cases because he was in fact guilty, and that he did not plead guilty here because he was not guilty. He thus opened the door to cross-examination exploring his true motivation for the prior guilty pleas (see People v. Marable, 33 A.D.3d 723, 725, 826 N.Y.S.2d 273). The defendant also testified to facts that were in conflict with the precluded evidence, thereby opening the door to impeachment with the precluded evidence (see People v. Rodriguez, 85 N.Y.2d 586, 591, 627 N.Y.S.2d 292, 650 N.E.2d 1293; People v. Jones, 278 A.D.2d 246, 717 N.Y.S.2d 270). The People were entitled to address, in cross-examination, any misleading impression given to the jury (see People v. Fosmer, 293 A.D.2d 824, 826, 743 N.Y.S.2d 179).
As the defendant's sentence was enhanced solely based upon his recidivism (see Penal Law § 70.08[a], [a–1] ), he was not entitled to a jury trial to determine the facts of his prior felony convictions (see People v. Highsmith, 21 A.D.3d 1037, 1038, 801 N.Y.S.2d 355; People v. Rogers, 19 A.D.3d 437, 438, 796 N.Y.S.2d 134; People v. Brown, 16 A.D.3d 430, 790 N.Y.S.2d 411; People v. Renna, 13 A.D.3d 398, 785 N.Y.S.2d 339). However, the sentence was excessive to extent indicated herein (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contention is unpreserved for appellate review, and we decline to review it in the exercise of our interest of justice jurisdiction.
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