People v. Rios

44 A.D.3d 494, 843 N.Y.S.2d 316

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2007
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered February 19, 2004, convicting defendant, after a jury trial, of attempted sodomy in the first degree (four counts), sexual abuse in the first degree (two counts), public lewdness (two counts) and sexual abuse in the third degree, and sentencing him to an aggregate term of 37 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that all sentences run concurrently, resulting in a new aggregate term of 15 years, and otherwise affirmed.

We need not determine whether the court properly exercised its discretion in receiving evidence of an uncharged crime, as any error in the admission of this evidence was harmless given the overwhelming evidence of guilt and the court’s limiting instruction.

Defendant’s arguments as to the People’s opening statement and summation and the court’s charge are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

We find the sentence, which is deemed pursuant to the Penal Law to be 20 years, excessive to the extent indicated. Concur— Nardelli, J.P., Gonzalez, Sweeny, McGuire and Kavanagh, JJ.