People v. Marrero

| N.Y. App. Div. | Sep 21, 1995

—Judgment, Supreme Court, Bronx County (George Covington, J.), rendered February 23, 1994, convicting defendant, after a jury trial, of criminal sale and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 12x/2 to 25 years, unanimously modified, as a matter of discretion in the interest of justice, to reverse the possession conviction and to dismiss that count of the indictment and to reduce the sentence on the sale conviction to a term of 5 to 10 years, and otherwise affirmed.

Because defendant did not object or make any record with respect to his claim that the court failed to meaningfully respond to the jury note, the claim is both unpreserved (CPL 470.05 [2]) and unreviewable on direct appeal (People v Brown, 192 AD2d 666, lv denied 81 NY2d 1070).

Since a conviction on the third degree criminal sale count required a conviction on the third degree criminal possession count, the latter should have been dismissed in the interest of justice as a noninclusory concurrent count (People v Gaul, 63 AD2d 563).

In light of defendant’s prior record and employment background, the court’s imposition of the maximum sentence of 12x/2 to 25 years for the sale conviction is excessive, and we reduce in the interest of justice to the extent indicated. Concur — Wallach, J. P., Kupferman, Ross, Nardelli and Tom, JJ.