People v. Frascone

Appellate Division of the Supreme Court of New York

People v. Frascone

271 A.D.2d 333, 707 N.Y.S.2d 155, 2000 N.Y. App. Div. LEXIS 4353

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

DecidedApril 20, 2000

StatusPublished

Cited by12 cases

This text of 271 A.D.2d 333 (People v. Frascone) 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. Frascone, 271 A.D.2d 333, 707 N.Y.S.2d 155, 2000 N.Y. App. Div. LEXIS 4353 (N.Y. Ct. App. 2000).

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Opinion

—Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered June 19, 1997, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

Where the indictment charged defendant with taking the victim’s car and money, the court properly instructed the jury that it could convict defendant on the basis of taking either the car or the money. In charging the jury in the disjunctive, rather than in the conjunctive, the court did not amend the indictment, permit the People to change the theory of the prosecution, or render the count duplicitous (see, People v Charles, 61 NY2d 321, 327-329; People v Dickens, 259 AD2d 450, lv denied 93 NY2d 1002; People v Del-Debbio, 244 AD2d 195, lv denied 91 NY2d 925).

The court’s compromise Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see, People v Walker, 83 NY2d 455, 458-459).

The court properly exercised its discretion in declining to recuse itself based on an unfounded claim that it had engaged in ex parte discussions of the case with a prosecutor (see, People v Moreno, 70 NY2d 403; People v Patrick, 183 NY 52, 54-55).

On the totality of the existing record, we find that defendant received meaningful representation (see, People v Benevento, 91 NY2d 708, 713-714). Specifically, given the overwhelming evidence of guilt, trial counsel employed a sound strategy when he suggested the jury convict defendant of the lesser included offense of robbery in the third degree (see, People v Barnes, 249 AD2d 227, lv denied 92 NY2d 893). Had this strategy been successful, defendant would have been eligible for a considerably lower sentence.

We see no need for a remand for reconsideration of defendant’s sentence. Imposition of the mandatory minimum sentence was not unconstitutional in this case (see, People v Thompson, 83 NY2d 477, 480). Accordingly, the court had no discretion to impose a lesser sentence.

We have considered and rejected defendant’s remaining claims, including those contained in his pro se supplemental brief. Concur — Rosenberger, J. P., Williams, Rubin, Saxe and Buckley JJ.

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—Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered June 19, 1997, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

Where the indictment charged defendant with taking the victim’s car and money, the court properly instructed the jury that it could convict defendant on the basis of taking either the car or the money. In charging the jury in the disjunctive, rather than in the conjunctive, the court did not amend the indictment, permit the People to change the theory of the prosecution, or render the count duplicitous (see, People v Charles, 61 NY2d 321, 327-329; People v Dickens, 259 AD2d 450, lv denied 93 NY2d 1002; People v Del-Debbio, 244 AD2d 195, lv denied 91 NY2d 925).

The court’s compromise Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see, People v Walker, 83 NY2d 455, 458-459).

The court properly exercised its discretion in declining to recuse itself based on an unfounded claim that it had engaged in ex parte discussions of the case with a prosecutor (see, People v Moreno, 70 NY2d 403; People v Patrick, 183 NY 52, 54-55).

On the totality of the existing record, we find that defendant received meaningful representation (see, People v Benevento, 91 NY2d 708, 713-714). Specifically, given the overwhelming evidence of guilt, trial counsel employed a sound strategy when he suggested the jury convict defendant of the lesser included offense of robbery in the third degree (see, People v Barnes, 249 AD2d 227, lv denied 92 NY2d 893). Had this strategy been successful, defendant would have been eligible for a considerably lower sentence.

We see no need for a remand for reconsideration of defendant’s sentence. Imposition of the mandatory minimum sentence was not unconstitutional in this case (see, People v Thompson, 83 NY2d 477, 480). Accordingly, the court had no discretion to impose a lesser sentence.

We have considered and rejected defendant’s remaining claims, including those contained in his pro se supplemental brief. Concur — Rosenberger, J. P., Williams, Rubin, Saxe and Buckley JJ.

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271 A.D.2d 333, 707 N.Y.S.2d 155, 2000 N.Y. App. Div. LEXIS 4353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-frascone-nyappdiv-2000.

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