People v. Johnson

Mar 4, 2008
Versions:49 A.D.3d 557
855 N.Y.2d 549

The defendant‘s contention that the police search of his backpack was unlawful in the absence of the necessary exigent circumstances (see generally People v Gokey, 60 NY2d 309, 312 [1983]) is unpreserved for appellate review (see CPL 470.05 [2]; People v Turriago, 90 NY2d 77, 83 [1997]; People v Lightfoot, 22 AD3d 865, 866 [2005]) and, in any event, is without merit (see People v Gokey, 60 NY2d 309, 312 [1983]).

The defendant‘s challenges to certain remarks of the prosecutor in his opening and closing statements, as well as his elicitation of specified testimony from two witnesses, are also unpreserved for appellate review (see CPL 470.05 [2]; People v Warren, 12 AD3d 708, 708 [2004]). In any event, while some of the prosecutor‘s remarks and elicited testimony which are challenged on appeal were improperly inflammatory, they were not individually or cumulatively so prejudicial as to warrant reversal (see People v Torres, 121 AD2d 663 [1986]). Moreover, contrary to the defendant‘s contention, he was not denied meaningful representation based solely on his trial attorney‘s failure to object to the challenged remarks and elicited testimony (see generally People v Benevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]; cf. People v Gonzalez, 44 AD3d 871 [2007]).

The Supreme Court sentenced the defendant to concurrent determinate terms of 20 years imprisonment for each count of robbery in the first degree and 10 years imprisonment on the count of robbery in the second degree. Neither the sentencing minutes nor the original order of commitment mentioned the imposition of any period of postrelease supervision. Therefore, as the People correctly concede, the sentence actually imposed never included, and does not now include, any period of postrelease supervision (see People ex rel. Gerard [Colarusso] v Kralik, 44 AD3d 804 [2007]; People v Martinez, 40 AD3d 1012 [2007]; People v Howell, 40 AD3d 882 [2007]).

Lifson, J.P., Santucci, Covello and Dickerson, JJ., concur.