People v. LakatoszPeople v. Lakatosz
that, on this record, defendant‘s ineffective assistance argument appears viable.
Kavanagh, J. Appeal from a judgment of the County Court of Madison County (DiStefano, J.), rendered March 13, 2003, upon a verdict convicting defendant of the crimes of burglary in the second degree (two counts) and petit larceny (two counts).
Defendant was charged by indictment with two counts each of burglary in the second degree and petit larceny in connection with separate criminal transactions that occurred in Madison County in March and October 2001. In each, defendant was charged with purposely distracting elderly homeowners while accomplices stole money and property from their residences. After a jury trial, defendant was found guilty as charged and was sentenced to consecutive 15-year prison terms for each burglary conviction, as well as concurrent one-year sentences for each petit larceny conviction. Defendant now appeals.
Defendant contends that County Court erred in conducting in her absence many of the proceedings that culminated in her conviction, including the pretrial hearings, the trial and the imposition of her sentence. For there to be a valid waiver of a defendant‘s right to be present while proceedings in a criminal prosecution are being conducted, it must be shown that the defendant was informed not only of the right to be present at the proceedings, but also of the consequences for failing to appear, including the fact that the proceedings will proceed in his or her absence (see People v Parker, 57 NY2d 136, 141 [1982]; People v Stroman, 6 AD3d 818, 819 [2004], lv denied 3 NY3d 648 [2004]; People v Diotte, 305 AD2d 721, 722 [2003], lv denied 100 NY2d 580 [2003]; see also People v Severino, 44 AD3d 1077, 1078 [2007], lv denied 9 NY3d 1038 [2008]).
Here, on three separate occasions, County Court clearly and
We also find no merit in defendant‘s contention that County Court erred in not granting her motion to sever counts one and two from counts three and four of the amended indictment. As these counts involved the same statutory provisions, albeit different criminal undertakings (see
While we are convinced that defendant received a fair trial and her guilt was established beyond a reasonable doubt, we do believe that the 30-year prison term was, under all of the circumstances, harsh and excessive. We note that prior to trial, the People, with County Court‘s approval, offered defendant a six-year prison sentence if she pleaded guilty to one count of burglary in the second degree and bail jumping. In addition, the Attorney General agreed as part of the plea bargain to contact the prosecuting authorities in Onondaga County to obtain their consent to this guilty plea satisfying any similar charges pending against defendant in that jurisdiction. While defendant gave up any right she might have to this disposition by electing to proceed to trial (see People v Van Pelt, 76 NY2d 156, 160 [1990]; People v Fletcher, 309 AD2d 1085, 1086 [2003], lv denied 1 NY3d 571 [2003]), the record does not support such a dramatic enhancement in the proposed sentence. The scenario as to how these crimes were committed did not change between the time the plea was offered and the trial was conducted. Nor does it appear that anything was developed at trial that in any way added to the seriousness of defendant‘s misconduct. As such, it is difficult to glean anything from the record that would justify the imposition of a sentence after trial that was five times greater than that which was proposed by the People prior to trial (see People v Riback, 57 AD3d 1209, 1218-1219 [2008]).
Moreover, while we agree with County Court that defendant‘s failure to appear for the criminal proceedings was indeed an aggravating factor to be considered at sentencing, this, by itself, cannot warrant the imposition of maximum sentences to run consecutively. In that regard, we note that while defendant has been charged with committing numerous burglaries both prior to and after the instant crime, the presentence investigation report establishes that she has but one prior conviction for which she received a three-year probationary sentence. As a result, while we do not in any way minimize the seriousness of the crimes for which defendant stands convicted and are well aware that they involve preying upon a particularly vulnerable segment of the community, we find that the sentences, even in light of her absence during the proceedings, were excessive and out of proportion with those typically issued for similar convictions (see People v Mitchell, 55 AD3d 1048, 1052 [2008] [10-year prison term imposed for burglary in the second degree convic-
Given a total absence of any evidence that the victims were ever threatened or that violence of any kind was employed in the commission of either of these crimes, we are persuaded to exercise our interest of justice jurisdiction to modify defendant‘s sentences and order that her 15-year prison terms imposed for each burglary conviction run concurrently (see
Peters, J.P., Rose and Kane, JJ., concur; Spain, J., not taking part. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by directing that defendant‘s sentences for the two counts of burglary in the second degree shall run concurrently to one another and to the two sentences for petit larceny; and, as so modified, affirmed.