People v. Clarke

222 A.D.2d 1035, 636 N.Y.S.2d 529, 1995 N.Y. App. Div. LEXIS 14086

Opinion

—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant’s contentions that the trial court erred in failing to give a circumstantial evidence charge and in improperly restricting defense counsel’s opening statement are not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). The evidence, viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620, 621), is sufficient to support the conviction, and the verdict is not contrary to the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). Defense counsel provided meaningful representation (see, People v Baldi, 54 NY2d 137, 147). The remaining contentions raised in the pro se supplemental brief are based upon matters outside the record and are not subject to review on direct appeal (see, People v Simmons, 221 AD2d 994; People v Ford, 184 AD2d 1013, Iv denied 80 NY2d 929).

In our view, the sentence of 15 years to life imposed upon the burglary conviction is unduly harsh. Although defendant has had a number of contacts with the law, the majority of his convictions are for petty offenses and none of his convictions involves an act of violence. We, therefore, as a matter of discretion in the interest of justice, reduce defendant’s sentence to an indeterminate term of incarceration of 8 years to life (see, CPL 470.15 [6] [b]; People v Friday, 114 AD2d 970, 972; People v Brewer, 109 AD2d 1077, 1077-1078). (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J. — Burglary, 2nd Degree.) Present — Green, J. P., Lawton, Fallon, Doerr and Balio, JJ.