People v. Lawton

Appellate Division of the Supreme Court of New York

People v. Lawton

144 A.D.2d 584, 534 N.Y.S.2d 227, 1988 N.Y. App. Div. LEXIS 11928

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

DecidedNovember 21, 1988

StatusPublished

Cited by7 cases

This text of 144 A.D.2d 584 (People v. Lawton) 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. Lawton, 144 A.D.2d 584, 534 N.Y.S.2d 227, 1988 N.Y. App. Div. LEXIS 11928 (N.Y. Ct. App. 1988).

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Opinion

Appeal by the defendant from seven judgments of the Supreme Court, Queens County (Browne, J.), all rendered May 31, 1985, convicting him of robbery in the first degree (four counts) under indictment No. 4012/84, upon a jury verdict, and sentencing him to four concurrent terms of 8 Vis to 25 years’ imprisonment, and impos[585]*585ing four mandatory surcharges of $75 each; convicting him of robbery in the first degree and robbery in the second degree under indictment No. 4055/84, upon his plea of guilty, and sentencing him to concurrent terms of 8 Vs to 25 years’ and 5 to 15 years’ imprisonment, and two mandatory surcharges of $75 each; convicting him of robbery in the. first degree under indictment No. 4056/84, upon his plea of guilty, and sentencing him to 8 Vs to 25 years’ imprisonment, and a mandatory surcharge of $75; convicting him of robbery in the first degree under indictment No. 4057/84, upon his plea of guilty, and sentencing him to 8 Vs to 25 years’ imprisonment, and a mandatory surcharge of $75; convicting him of robbery in the first degree under indictment No. 4058/84, upon his plea of guilty, and sentencing him to 8 Vs to 25 years’ imprisonment, and a mandatory surcharge of $75; convicting him of robbery in the first degree and robbery in the second degree under indictment No. 4314/84, upon his plea of guilty, and sentencing him to two concurrent terms of 8 Vs to 25 years’ and 5 to 10 years’ imprisonment, and two mandatory surcharges of $75; and convicting him of robbery in the first degree and robbery in the second degree under indictment No. 4315/84, upon his plea of guilty, and sentencing him to concurrent indeterminate terms of 8 Vs to 25 years’ and 5 to 15 years’ imprisonment, and two mandatory surcharges of $75.

Ordered that the judgments under indictments Nos. 4012/ 84, 4055/84, 4314/84 and 4315/84 are modified, on the law, by reducing the number of mandatory surcharges of $75 to one with respect to the judgment rendered on each indictment; as so modified these judgments are affirmed; and it is further,

Ordered that the judgments under indictments Nos. 4056/ 84, 4057/84 and 4058/84 are affirmed.

The defendant contends that errors in the trial court’s charge denied him a fair trial. While the court improperly used the terms "moral certainty” and "reasonable degree of certainty” in defining the reasonable doubt standard and instructed the jury that it must have a "substantial, articulable reason” for its doubt (see, People v La Rosa, 112 AD2d 954; People v Harvey, 111 AD2d 185), having failed to raise an objection to this portion of the charge, the defendant has failed to preserve the issue for appellate review (CPL 470.05 [2]). Moreover, an examination of the entire charge reveals that the concept of reasonable doubt was properly explained to the jury. Accordingly, the error does not warrant reversal in the interest of justice (see, e.g., People v Fisher, 112 AD2d 378; People v Ortiz, 92 AD2d 595).

[586]*586The defendant also challenged the trial court’s charge regarding his failure to testify. While we agree that the charge unnecessarily exceeded the language of CPL 300.10 (2) (see, People v Gonzalez, 72 AD2d 508, supra), it was consistent in substance with the intent of the statute and did not change its meaning (People v Gonzalez, 72 AD2d 508). Moreover, the error was harmless in view of the overwhelming proof of the defendant’s guilt (People v Crimmins, 36 NY2d 230).

Finally, the defendant pleaded guilty on six indictments and each of his sentences on those indictments was the result of the plea bargain agreement. He cannot now claim his sentences were excessive (see, People v Inch, 127 AD2d 851, Iv denied 69 NY2d 1005; People v Kazepis, 101 AD2d 816). Moreover, the defendant’s application for vacatur of the mandatory surcharges imposed pursuant to Penal Law § 60.35 is premature (see, People v West, 124 Misc 2d 622; CPL 420.35, 420.10; People v Brown, 133 AD2d 463). However, as conceded by the People, the Supreme Court erred in imposing 13 surcharges as the 13 offenses represented only seven separate "act[s]” (see, Penal Law § 60.35 [2]). Mangano, J. P., Brown, Lawrence and Spatt, JJ., concur.

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Appeal by the defendant from seven judgments of the Supreme Court, Queens County (Browne, J.), all rendered May 31, 1985, convicting him of robbery in the first degree (four counts) under indictment No. 4012/84, upon a jury verdict, and sentencing him to four concurrent terms of 8 Vis to 25 years’ imprisonment, and impos[585]*585ing four mandatory surcharges of $75 each; convicting him of robbery in the first degree and robbery in the second degree under indictment No. 4055/84, upon his plea of guilty, and sentencing him to concurrent terms of 8 Vs to 25 years’ and 5 to 15 years’ imprisonment, and two mandatory surcharges of $75 each; convicting him of robbery in the. first degree under indictment No. 4056/84, upon his plea of guilty, and sentencing him to 8 Vs to 25 years’ imprisonment, and a mandatory surcharge of $75; convicting him of robbery in the first degree under indictment No. 4057/84, upon his plea of guilty, and sentencing him to 8 Vs to 25 years’ imprisonment, and a mandatory surcharge of $75; convicting him of robbery in the first degree under indictment No. 4058/84, upon his plea of guilty, and sentencing him to 8 Vs to 25 years’ imprisonment, and a mandatory surcharge of $75; convicting him of robbery in the first degree and robbery in the second degree under indictment No. 4314/84, upon his plea of guilty, and sentencing him to two concurrent terms of 8 Vs to 25 years’ and 5 to 10 years’ imprisonment, and two mandatory surcharges of $75; and convicting him of robbery in the first degree and robbery in the second degree under indictment No. 4315/84, upon his plea of guilty, and sentencing him to concurrent indeterminate terms of 8 Vs to 25 years’ and 5 to 15 years’ imprisonment, and two mandatory surcharges of $75.

Ordered that the judgments under indictments Nos. 4012/ 84, 4055/84, 4314/84 and 4315/84 are modified, on the law, by reducing the number of mandatory surcharges of $75 to one with respect to the judgment rendered on each indictment; as so modified these judgments are affirmed; and it is further,

Ordered that the judgments under indictments Nos. 4056/ 84, 4057/84 and 4058/84 are affirmed.

The defendant contends that errors in the trial court’s charge denied him a fair trial. While the court improperly used the terms "moral certainty” and "reasonable degree of certainty” in defining the reasonable doubt standard and instructed the jury that it must have a "substantial, articulable reason” for its doubt (see, People v La Rosa, 112 AD2d 954; People v Harvey, 111 AD2d 185), having failed to raise an objection to this portion of the charge, the defendant has failed to preserve the issue for appellate review (CPL 470.05 [2]). Moreover, an examination of the entire charge reveals that the concept of reasonable doubt was properly explained to the jury. Accordingly, the error does not warrant reversal in the interest of justice (see, e.g., People v Fisher, 112 AD2d 378; People v Ortiz, 92 AD2d 595).

[586]*586The defendant also challenged the trial court’s charge regarding his failure to testify. While we agree that the charge unnecessarily exceeded the language of CPL 300.10 (2) (see, People v Gonzalez, 72 AD2d 508, supra), it was consistent in substance with the intent of the statute and did not change its meaning (People v Gonzalez, 72 AD2d 508). Moreover, the error was harmless in view of the overwhelming proof of the defendant’s guilt (People v Crimmins, 36 NY2d 230).

Finally, the defendant pleaded guilty on six indictments and each of his sentences on those indictments was the result of the plea bargain agreement. He cannot now claim his sentences were excessive (see, People v Inch, 127 AD2d 851, Iv denied 69 NY2d 1005; People v Kazepis, 101 AD2d 816). Moreover, the defendant’s application for vacatur of the mandatory surcharges imposed pursuant to Penal Law § 60.35 is premature (see, People v West, 124 Misc 2d 622; CPL 420.35, 420.10; People v Brown, 133 AD2d 463). However, as conceded by the People, the Supreme Court erred in imposing 13 surcharges as the 13 offenses represented only seven separate "act[s]” (see, Penal Law § 60.35 [2]). Mangano, J. P., Brown, Lawrence and Spatt, JJ., concur.

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144 A.D.2d 584, 534 N.Y.S.2d 227, 1988 N.Y. App. Div. LEXIS 11928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lawton-nyappdiv-1988.

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