People v. Pozo

Appellate Division of the Supreme Court of New York

People v. Pozo

261 A.D.2d 144, 692 N.Y.S.2d 3, 1999 N.Y. App. Div. LEXIS 4568

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

DecidedMay 6, 1999

StatusPublished

Cited by4 cases

This text of 261 A.D.2d 144 (People v. Pozo) 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. Pozo, 261 A.D.2d 144, 692 N.Y.S.2d 3, 1999 N.Y. App. Div. LEXIS 4568 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered April 10, 1997, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

Since defendant’s request that the court submit to the jury the count of the indictment charging criminal possession of stolen property in the fifth degree was based solely on the theory that such crime was a lesser included offense of robbery, his present claim that the court should have submitted this non-inclusory concurrent count as a matter of discretion pursuant to CPL 300.40 (3) (a) is not preserved for appellate review (see, People v Borrello, 52 NY2d 952), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court properly exercised its discretion in declining to submit this count, particularly after the People agreed to withdraw the count (see, CPL 300.40 [6] [a]; see also, CPL 300.40 [6] [b]). Unlike the situation with respect to lesser included offenses, the submission of non-inclusory concurrent counts is discretionary, even if there exists a reasonable view of the evidence to support such submission (see, People v Garcia, 219 AD2d 669, lv denied 87 NY2d 901). In any event, we conclude that there was no such reasonable view of the evidence. We have considered and rejected defendant’s other arguments. Concur — Sullivan, J. P., Rosenberger, Tom and Wallach, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered April 10, 1997, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously affirmed.

Since defendant’s request that the court submit to the jury the count of the indictment charging criminal possession of stolen property in the fifth degree was based solely on the theory that such crime was a lesser included offense of robbery, his present claim that the court should have submitted this non-inclusory concurrent count as a matter of discretion pursuant to CPL 300.40 (3) (a) is not preserved for appellate review (see, People v Borrello, 52 NY2d 952), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court properly exercised its discretion in declining to submit this count, particularly after the People agreed to withdraw the count (see, CPL 300.40 [6] [a]; see also, CPL 300.40 [6] [b]). Unlike the situation with respect to lesser included offenses, the submission of non-inclusory concurrent counts is discretionary, even if there exists a reasonable view of the evidence to support such submission (see, People v Garcia, 219 AD2d 669, lv denied 87 NY2d 901). In any event, we conclude that there was no such reasonable view of the evidence. We have considered and rejected defendant’s other arguments. Concur — Sullivan, J. P., Rosenberger, Tom and Wallach, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

261 A.D.2d 144, 692 N.Y.S.2d 3, 1999 N.Y. App. Div. LEXIS 4568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-pozo-nyappdiv-1999.

Opinion

Related

Cite This Page — Counsel Stack