People v. Kearse

Appellate Division of the Supreme Court of New York

People v. Kearse

283 A.D.2d 262, 724 N.Y.S.2d 316, 2001 N.Y. App. Div. LEXIS 5105

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

DecidedMay 17, 2001

StatusPublished

Cited by1 cases

This text of 283 A.D.2d 262 (People v. Kearse) 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. Kearse, 283 A.D.2d 262, 724 N.Y.S.2d 316, 2001 N.Y. App. Div. LEXIS 5105 (N.Y. Ct. App. 2001).

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Opinion

—Judgment, Supreme Court, New York County (William Wetzel, J.), rendered June 16, 1998, convicting defendant, after a non-jury trial, of burglary in the second and third degrees, petit larceny and criminal possession of stolen property in the fifth degree, and sentencing him, as a persistent felony offender, to two terms of 20 years to life and two terms of 1 year, the sentences to run concurrently, unanimously affirmed.

Defendant’s claim that the court deprived him of an opportunity to make a summation is unpreserved for appellate review. Although the court and prosecutor in this nonjury trial apparently mistook defendant’s arguments in support of a trial order of dismissal to be the defense summation, defense counsel’s comments failed to clarify the situation. Furthermore, counsel did not avail herself of the court’s offer of an opportunity to make further argument on the evidence. We decline to review this claim in the interest of justice. Were we to review the claim, we would find that the record fails to support a “total denial of the opportunity for final argument” (Herring v New York, 422 US 853, 859; see also, United States v Martinez, 974 F2d 589 [5th Cir 1992]).

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit (see, People v Rosen, 96 NY2d 329). We perceive no basis for reduction of sentence. Concur — Sullivan, P. J., Nardelli, Williams, Rubin and Marlow, JJ.

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—Judgment, Supreme Court, New York County (William Wetzel, J.), rendered June 16, 1998, convicting defendant, after a non-jury trial, of burglary in the second and third degrees, petit larceny and criminal possession of stolen property in the fifth degree, and sentencing him, as a persistent felony offender, to two terms of 20 years to life and two terms of 1 year, the sentences to run concurrently, unanimously affirmed.

Defendant’s claim that the court deprived him of an opportunity to make a summation is unpreserved for appellate review. Although the court and prosecutor in this nonjury trial apparently mistook defendant’s arguments in support of a trial order of dismissal to be the defense summation, defense counsel’s comments failed to clarify the situation. Furthermore, counsel did not avail herself of the court’s offer of an opportunity to make further argument on the evidence. We decline to review this claim in the interest of justice. Were we to review the claim, we would find that the record fails to support a “total denial of the opportunity for final argument” (Herring v New York, 422 US 853, 859; see also, United States v Martinez, 974 F2d 589 [5th Cir 1992]).

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is unpreserved for appellate review and, in any event, is without merit (see, People v Rosen, 96 NY2d 329). We perceive no basis for reduction of sentence. Concur — Sullivan, P. J., Nardelli, Williams, Rubin and Marlow, JJ.

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Bluebook (online)

283 A.D.2d 262, 724 N.Y.S.2d 316, 2001 N.Y. App. Div. LEXIS 5105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kearse-nyappdiv-2001.

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