PEOPLE v. CARILLO

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

The PEOPLE, etc., respondent, v. Demar CARILLO, appellant.

Decided: August 05, 2002

MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT and STEPHEN G. CRANE, JJ. Arza Feldman, Hauppauge, N.Y., for appellant, and appellant pro se. Denis Dillon, District Attorney, Mineola, N.Y. (Judith R. Sternberg, Bruce E. Whitney, and John F. McGlynn of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Galasso, J.), rendered March 31, 1999, convicting him of robbery in the first degree (four counts), robbery in the second degree, assault in the first degree, attempted assault in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his conviction is not supported by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05 [2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 Contrary to the defendant's contention, he was not deprived of a fair trial by two brief references to his prior contact with the criminal justice system (see People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 418 N.E.2d 668;  People v. Young, 48 N.Y.2d 995, 996, 425 N.Y.S.2d 546, 401 N.E.2d 904;  People v. Singletary, 270 A.D.2d 903, 706 N.Y.S.2d 551;   People v. Caban, 224 A.D.2d 705, 638 N.Y.S.2d 966;  People v. Pought, 154 A.D.2d 628, 629, 546 N.Y.S.2d 458;  cf. People v. Mullin, 41 N.Y.2d 475, 480, 393 N.Y.S.2d 938, 362 N.E.2d 571;  People v. Butler, 258 A.D.2d 368, 686 N.Y.S.2d 372).   The record is clear that the court gave a curative instruction.   Moreover, it was the defense counsel who elicited the first comment at issue, and the defense counsel had already elicited the information contained in the second comment prior to the prosecutor's question.

 The trial court also properly declined to give a missing witness charge.   The request for such a charge was untimely since it was made after the close of all of the evidence (see People v. Tilghman, 233 A.D.2d 348, 649 N.Y.S.2d 818;  People v. Woodford, 200 A.D.2d 644, 608 N.Y.S.2d 854;  cf. People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583).   In any event, the defendant failed to establish that the missing witness was under the control of the People and would have been expected to provide noncumulative testimony favorable to the prosecution (see People v. Keen, 94 N.Y.2d 533, 539, 707 N.Y.S.2d 380, 728 N.E.2d 979;  People v. Macana, 84 N.Y.2d 173, 177, 615 N.Y.S.2d 656, 639 N.E.2d 13;  People v. Gonzalez, supra;  People v. Almestica, 288 A.D.2d 483, 733 N.Y.S.2d 247, lv. denied 97 N.Y.2d 750, 742 N.Y.S.2d 610, 769 N.E.2d 356;  People v. Nasario, 258 A.D.2d 599, 600, 686 N.Y.S.2d 441;  People v. O'Hara, 253 A.D.2d 560, 561, 677 N.Y.S.2d 373;  People v. Bradshaw, 232 A.D.2d 499, 500, 648 N.Y.S.2d 941).

 Furthermore, contrary to the defendant's contention, the fact that the sentence imposed after trial was greater than that offered during plea negotiations is no indication that the defendant was punished for asserting his right to proceed to trial (see People v. Bellilli, 270 A.D.2d 355, 704 N.Y.S.2d 616;  People v. Lam, 226 A.D.2d 554, 555, 641 N.Y.S.2d 97;  People v. Goolsby, 213 A.D.2d 722, 624 N.Y.S.2d 955;  People v. Clarke, 195 A.D.2d 569, 570-571, 600 N.Y.S.2d 732;  cf. People v. Cosme, 203 A.D.2d 375, 376, 610 N.Y.S.2d 293).   It is “to be anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea” (People v. Pena, 50 N.Y.2d 400, 412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814;  see People v. Bellilli, supra;  People v. Rosemond, 226 A.D.2d 404, 640 N.Y.S.2d 774;  People v. Velez, 222 A.D.2d 539, 541, 634 N.Y.S.2d 758;  People v. Street, 220 A.D.2d 704, 705, 632 N.Y.S.2d 666;  People v. Patterson, 106 A.D.2d 520, 521, 483 N.Y.S.2d 55).   Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.

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