People v. Cunningham

Appellate Division of the Supreme Court of New York

People v. Cunningham

30 A.D.3d 269, 817 N.Y.S.2d 56

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 20, 2006

StatusPublished

This text of 30 A.D.3d 269 (People v. Cunningham) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Cunningham, 30 A.D.3d 269, 817 N.Y.S.2d 56 (N.Y. Ct. App. 2006).

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Opinion

Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered February 24, 2004, convicting defen[270]*270dant, after a jury trial, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

To the extent that in its Sandoval ruling the court improperly permitted the People to elicit prejudicial underlying facts of prior similar convictions, the court erred. We find, however, the error to be harmless in light of the overwhelming evidence of defendant’s guilt (see e.g. People v Shields, 46 NY2d 764 [1978]; People v Grant, 23 AD3d 172 [2005], lv granted 6 NY3d 813 [2006]; compare People v Williams, 56 NY2d 236, 240-241 [1982]). Defendant never challenged his identity as the person who attempted to enter the apartment of the complaining witness, who chased after defendant, resulting in his apprehension.

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant’s mandatory sentence as a persistent violent felony offender was based entirely on his prior convictions (see Almendarez-Torres v United States, 523 US 224 [1998]). Concur—Buckley, P.J., Tom, Saxe, Sullivan and Williams, JJ.

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Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered February 24, 2004, convicting defen[270]*270dant, after a jury trial, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

To the extent that in its Sandoval ruling the court improperly permitted the People to elicit prejudicial underlying facts of prior similar convictions, the court erred. We find, however, the error to be harmless in light of the overwhelming evidence of defendant’s guilt (see e.g. People v Shields, 46 NY2d 764 [1978]; People v Grant, 23 AD3d 172 [2005], lv granted 6 NY3d 813 [2006]; compare People v Williams, 56 NY2d 236, 240-241 [1982]). Defendant never challenged his identity as the person who attempted to enter the apartment of the complaining witness, who chased after defendant, resulting in his apprehension.

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant’s mandatory sentence as a persistent violent felony offender was based entirely on his prior convictions (see Almendarez-Torres v United States, 523 US 224 [1998]). Concur—Buckley, P.J., Tom, Saxe, Sullivan and Williams, JJ.

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Bluebook (online)

30 A.D.3d 269, 817 N.Y.S.2d 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cunningham-nyappdiv-2006.

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