PEOPLE v. BESTER

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Anthony BESTER, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, SMITH, PINE, AND HAYES, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Steven Meyer of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ) and two counts of criminal possession of a weapon in the third degree (§ 265.02 [1] ).   Defendant failed to preserve for our review his contention that County Court deprived him of his right to a jury of his choice when it misinformed defense counsel of the number of defendant's remaining peremptory challenges (see People v. Mathis, 272 A.D.2d 250, 708 N.Y.S.2d 87, lv. denied 95 N.Y.2d 936, 721 N.Y.S.2d 612, 744 N.E.2d 148;  see also People v. Garcia, 2 A.D.3d 302, 768 N.Y.S.2d 597, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 465, 810 N.E.2d 918), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Contrary to defendant's further contentions, the verdict is not against the weight of the evidence (see People v. Amin, 294 A.D.2d 863, 742 N.Y.S.2d 746, lv. denied 98 N.Y.2d 672, 746 N.Y.S.2d 461, 774 N.E.2d 226;  People v. Irizarry, 238 A.D.2d 940, 940-941, 661 N.Y.S.2d 147, lv. denied 90 N.Y.2d 894, 662 N.Y.S.2d 437, 685 N.E.2d 218;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672), and the term of imprisonment imposed on the murder count is not unduly harsh or severe.   We agree with defendant, however, that the terms of imprisonment imposed on the counts of criminal possession of a weapon in the third degree are unlawful.   Defendant was sentenced as a second felony offender, and thus the maximum term of imprisonment for each of those counts is an indeterminate term of 3 1/212 to 7 years (see Penal Law § 265.02;  see also § 70.06[3][d];  [4][b] ).  We therefore modify the judgment accordingly, and we remit the matter to County Court for resentencing on counts three and four of the indictment (see People v. Douglas, 16 A.D.3d 1039, 792 N.Y.S.2d 884).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentences imposed on the two counts of criminal possession of a weapon in the third degree and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing on counts three and four of the indictment.

MEMORANDUM: