PEOPLE v. ROBINSON

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. George H. ROBINSON Sr., Appellant.

Decided: February 25, 1999

Before:  CARDONA, P.J., MERCURE, PETERS, SPAIN and CARPINELLO, JJ. Teresa C. Mulliken, Delhi, for appellant. Richard D. Northrup Jr., District Attorney, Delhi, for respondent.

Appeal from a judgment of the County Court of Delaware County (Estes, J.), rendered September 8, 1997, upon a verdict convicting defendant of the crimes of burglary in the second degree, grand larceny in the fourth degree, petit larceny and criminal possession of a weapon in the fourth degree.

As a result of his alleged involvement in a series of criminal transactions together with Zachary Tucker during the early morning hours of March 8, 1997, defendant was indicted for grand larceny in the fourth degree (count one) based upon his theft of a 1988 Plymouth Voyager minivan, grand larceny in the fourth degree (count two) and burglary in the second degree (count three) based upon his entry into the Sturino residence in the Town of Bovina, Delaware County, and his theft of a shotgun therefrom, burglary in the second degree (count four) and petit larceny (count five) based upon his entry into the Camp residence in the Town of Bovina and theft of a VCR and radios therefrom, and criminal possession of a weapon in the fourth degree (count six) based upon his possession of a shotgun while having been previously convicted of the felony of burglary in the third degree.   Tucker testified for the People at the ensuing trial, and a jury found defendant guilty of counts one, four, five and six of the indictment.   Defendant was sentenced as a second felony offender to consecutive prison terms of 15 years on the conviction of burglary in the second degree, 2 to 4 years on the conviction of grand larceny in the fourth degree, and one year each on the convictions of petit larceny and criminal possession of a weapon in the fourth degree.

 Of the various contentions advanced on appeal, we find merit in only one, i.e., that the sentence imposed by County Court is harsh and excessive.   In view of defendant's age, the circumstances underlying his crimes and the extremely lenient sentence received by Tucker, we shall exercise our discretion in the interest of justice to provide for concurrent sentences (see, People v. Murdock, 219 A.D.2d 764, 631 N.Y.S.2d 198;  People v. Tortorice, 142 A.D.2d 916, 531 N.Y.S.2d 414).

 Defendant's remaining contentions warrant little discussion.   First, having failed to object to any alleged inconsistency in the jury's verdicts prior to the discharge of the jury, defendant has failed to preserve that issue for our review (see, People v. Alfaro, 66 N.Y.2d 985, 499 N.Y.S.2d 378, 489 N.E.2d 1280;  People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12, 437 N.E.2d 271;  People v. Durand, 188 A.D.2d 747, 591 N.Y.S.2d 233, lv. denied 81 N.Y.2d 884, 597 N.Y.S.2d 946, 613 N.E.2d 978).   Similarly, defendant's current objection to County Court's charge may not be raised for the first time on appeal (see, CPL 470.05[2];  People v. Teen, 200 A.D.2d 785, 606 N.Y.S.2d 922, lv. denied 83 N.Y.2d 859, 612 N.Y.S.2d 391, 634 N.E.2d 992).   Were we to consider the merits in the interest of justice, the result would be no different because we perceive no inconsistency in the jury's verdicts or error in County Court's charge.   Next, Tucker's accomplice testimony was sufficiently corroborated (see, CPL 60.22[1] ) and provided ample evidentiary support for the jury's findings of guilt.   Finally, defendant's contention that Penal Law § 70.25(2) prohibited consecutive sentencing on the convictions on counts four, five and six of the indictment is rendered academic by our modification of County Court's sentence so as to impose concurrent sentences.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by directing that the sentences imposed upon defendant be concurrent sentences, and, as so modified, affirmed.

MERCURE, J.

CARDONA, P.J., PETERS, SPAIN and CARPINELLO, JJ., concur.

Copied to clipboard