| People v Hall |
| 2017 NY Slip Op 05167 |
| Decided on June 22, 2017 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on June 22, 2017
Sweeny, J.P., Mazzarelli, Andrias, Moskowitz, Gische, JJ.
4353 164/13
v
Keith Hall, Defendant-Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel) and Weil, Gotshal & Manges, LLP, New York (Matthew S. Connors of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni of counsel), for respondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered February 19, 2014, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 12 years to life, unanimously modified, on the law, to the extent of vacating the persistent violent felony offender adjudication only with respect to the weapon possession conviction, and remanding for resentencing on that conviction as a second felony offender, and otherwise affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations, including its evaluation of the victim's explanation for initially giving false accounts of the incident.
The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People v Walker, 83 NY2d 455, 458-459 [1994]; People v Pavao, 59 NY2d 282, 292 [1983]). Defendant's theft-related convictions were highly relevant to his credibility. Defendant's Sandoval motion preserved a challenge to the court's substantive ruling, but failed to preserve defendant's present procedural arguments concerning the court's determination of the motion, and we decline to review them in the interest of justice. As an alternative holding, we find these procedural claims to be unsupported by a fair reading of the record, and unavailing.
The court providently exercised its discretion in denying defendant's CPL 210.40 motion to dismiss the charges in furtherance of justice. After considering the statutory factors in totality, we find no "compelling factor" (CPL 210.40[1]) that would warrant that "extraordinary remedy" (People v Moye, 302 AD2d 610, 611 [2d Dept 2003]), "which we have cautioned should be exercised sparingly" (People v Keith R., 95 AD3d 65, 67 [1st Dept 2012], lv denied 19 NY3d 963 [2012] [internal quotation marks omitted]; see also People v Marshall, 106 AD3d 1, 11 [1st Dept 2013], lv denied 21 NY3d 1006 [2013]).
As the People concede, defendant's present conviction of criminal possession of a weapon in the third degree was under a subdivision (Penal Law § 265.02[1]) not constituting a [*2]violent felony (Penal Law § 70.02[1][c]). Accordingly, defendant could not be sentenced as a persistent violent felony offender on that conviction. The parties agree that the matter should be remanded for resentencing on that conviction.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 22, 2017
CLERK