The People, etc., respondent, v. Angel Class, appellant.

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

The People, etc., respondent, v. Angel Class, appellant.

2009–05741 (Ind.No. 1124/06)

Decided: December 19, 2012

ANITA R. FLORIO, J.P. JOHN M. LEVENTHAL LEONARD B. AUSTIN JEFFREY A. COHEN, JJ. Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Jennifer Hagan of counsel), for respondent. The defendant's contention, raised in his pro se supplemental brief, that he was denied due process when the People subpoenaed a particular witness to testify at trial is unpreserved for appellate review (see CPL 470.05[2] ) and, in any event, without merit.   The defendant's remaining contentions, raised in his pro se supplemental brief, are without merit.

Argued—October 25, 2012

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered June 11, 2009, convicting him of manslaughter in the first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 25 years plus a period of 5 years of postrelease supervision on his conviction of manslaughter in the first degree and a determinate term of imprisonment of 7 years plus a period of 3 years of postrelease supervision on his conviction of assault in the second degree, to run consecutively to each other, and a definite term of imprisonment of 1 year on his conviction of criminal possession of a weapon in the fourth degree, to run concurrently with the sentence imposed on his conviction of manslaughter in the first degree.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, (1) by reducing the sentence imposed on the defendant's conviction of manslaughter in the first degree from a determinate term of imprisonment of 25 years plus a period of 5 years of postrelease supervision to a determinate term of 15 years of imprisonment plus a period of 5 years postrelease supervision, and (2) by reducing the sentence imposed on the defendant's conviction of assault in the second degree from a determinate term of imprisonment of 7 years plus a period of 3 years of postrelease supervision to a determinate term of imprisonment of 2 years plus a period of 2 years of postrelease supervision;  as so modified, the judgment is affirmed.

As the People correctly concede, a nontestifying codefendant's statement to the police that the defendant was in the codefendant's vehicle shortly before the subject incident occurred constituted testimonial hearsay and, thus, the admission of that statement into evidence violated the defendant's right of confrontation, as secured to him under the Sixth Amendment to the United States Constitution (see Crawford v. Washington, 541 U.S. 36, 52;  see also Davis v. Washington, 547 U.S. 813, 822;  Richardson v. Marsh, 481 U.S. 200, 206).   Nevertheless, we are satisfied that the evidence of the defendant's guilt, without reference to the error, was overwhelming, and there is no reasonable possibility that the error contributed to the defendant's conviction, particularly in light of the testimony of two other witnesses, which also placed the defendant in the codefendant's vehicle at the relevant time.   Thus, the error was harmless beyond a reasonable doubt (see People v. Douglas, 4 NY3d 777, 779;  People v. Hardy, 4 NY3d 192, 198;  People v. Crimmins, 36 N.Y.2d 230, 240–241).

The sentence imposed was excessive to the extent indicated herein (see People v. Danza, 127 A.D.2d 781, 782;  see also People v. Oddone, 89 AD3d 868;  People v. Illescas, 47 AD3d 840;  People v. McLeod, 38 AD3d 798).   Further, the periods of postrelease supervision imposed on the consecutive terms of imprisonment “shall merge with and be satisfied by discharge of the period of postrelease supervision having the longest unexpired time to run” (Penal Law § 70.45[5][c] ).

FLORIO, J.P., LEVENTHAL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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