PEOPLE v. SEATON

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

The PEOPLE, etc., respondent, v. Nolan SEATON, appellant.

Decided: November 27, 2007

ROBERT A. SPOLZINO, J.P., DAVID S. RITTER, JOSEPH COVELLO, and THOMAS A. DICKERSON, JJ. Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsi of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Morgan Dennehy of counsel;  Nicholas Patton and Sean Maraynes on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered March 2, 2005, convicting him of robbery in the second degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the trial court's charge to the jury, taken as a whole, conveyed the proper standard as to the burden of proof (see People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134;  People v. Johnson, 35 A.D.3d 885, 828 N.Y.S.2d 431).   The defendant's remaining contention concerning the charge is not preserved for appellate review (see People v. Jiggetts, 23 A.D.3d 582, 582, 806 N.Y.S.2d 596;  People v. Quinones, 235 A.D.2d 437, 437, 653 N.Y.S.2d 122) and we decline to review it in the exercise of our interest of justice jurisdiction.   Moreover, the defendant was not deprived of the effective assistance of counsel by his attorney's failure to object to stated portions of the charge (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584).

The defendant's contention that the persistent violent felony offender sentencing scheme under Penal Law § 70.08 violates the principles announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 is without merit (see People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194;  People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844;  People v. Hargroves, 27 A.D.3d 765, 815 N.Y.S.2d 605).

Finally, the defendant's contention, raised in his supplemental pro se brief, that he was deprived of a fair trial by the People's failure to provide him with witness statements, police reports, and a 911 tape in violation of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 is unpreserved for appellate review and, in any event, without merit.   Similarly, his contention that he was denied the effective assistance of appellate counsel in connection with this appeal cannot be addressed on this appeal (see People v. Kessler, 31 A.D.3d 786, 818 N.Y.S.2d 485;  People v. Velez, 286 A.D.2d 406, 728 N.Y.S.2d 720).   The remaining contentions raised in the defendant's supplemental pro se brief are without merit.

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