PEOPLE v. SASSO (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Deborah Stevens Modica, J.), rendered September 8, 2017, convicting him of burglary in the first degree, criminal possession of a weapon in the second degree (two counts), reckless endangerment in the second degree (two counts), and criminal mischief in the fourth degree, upon a jury verdict, and sentencing him, as a second violent felony offender, to a determinate term of imprisonment of 25 years plus 5 years of postrelease supervision on the conviction of burglary in the first degree under count 1 of the indictment, determinate terms of imprisonment of 15 years plus 5 years of postrelease supervision on the convictions of criminal possession of a weapon in the second degree under counts 4 and 9 of the indictment, determinate terms of imprisonment of 1 year on the convictions of reckless endangerment in the second degree under counts 6 and 12 of the indictment, and a determinate term of imprisonment of 1 year on the conviction of criminal mischief in the fourth degree under count 7 of the indictment, with the sentence imposed upon count 9 to run consecutively to the sentence imposed upon count 1, with the sentence imposed upon count 12 to run concurrently with the sentence imposed upon count 9, and with the remaining sentences to run concurrently with each other and with the sentence imposed upon count 1.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that all of the sentences imposed shall run concurrently with each other;  as so modified, the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence supporting his convictions is only partially preserved for appellate review (see CPL 470.05[2] ).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410;  People v Bleakley, 69 NY2d 490, 495).  Upon reviewing the record here, we are satisfied that the verdicts of guilt were not against the weight of the evidence (see People v Romero, 7 NY3d 633).

The defendant's contention that he was deprived of the effective assistance of counsel is based in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a “mixed claim of ineffective assistance” (People v Smith, 242 AD3d 907, 908 [internal quotation marks omitted] ).  Since the defendant's claims cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing those claims in their entirety, and we decline to review those claims on this direct appeal (see People v Smith, 242 AD3d at 908;  People v Padilla–Padilla, 233 AD3d 711).

The defendant's contention that the People limited their theory of burglary to a specific crime was unpreserved for appellate review (see CPL 470.05[2] ), and in any event, without merit.  Here, the People did not explicitly limit their theory of the burglary count in their pleadings or presentation of the case (see People v Seignious, 41 NY3d 505, 511–512;  cf.  People v Barnes, 50 NY2d 375).

The defendant's contention that he was penalized for exercising his right to a jury trial is without merit, as there is no indication in the record that the sentence was the result of vindictiveness or retribution for the defendant's refusal to accept a plea offer and the exercise of his right to a jury trial (see People v Gordon, 226 AD3d 700, 702–703).  However, the sentence imposed was excessive to the extent indicated herein (see People v Suitte, 90 A.D.2d 80).

BARROS, J.P., FORD, TAYLOR and QUIRK, JJ., concur.