People v. Mitchell

Oct 28, 2002
Versions:298 A.D.2d 602
748 N.Y.S.2d 689
2002 N.Y. App. Div. LEXIS 10305

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Knipel, J.), rendered July 19, 2000, convicting him of robbery in the first degree, grand larceny in the fourth degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed upon the conviction of grand larceny in the fourth degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

The Supreme Court providently exercised its discretion in allowing the People to inquire, in the event the defendant testified at trial, regarding his having five prior felony and two recent misdemeanor convictions, and his use of an alias (see People v Hayes, 97 NY2d 203; People v Sandoval, 34 NY2d 371).

The defendant’s argument that the Supreme Court erred in giving a “no adverse inference” charge is unpreserved for appellate review (see CPL 470.05 [2]; People v Robinson, 88 NY2d 1001) and, in any event, is without merit (see CPL 300.10 [2]; People v Vereen, 45 NY2d 856; People v Bailey, 222 AD2d 686).

As the People correctly concede, grand larceny in the fourth degree (see Penal Law § 155.30) is not an enumerated violent felony offense (see Penal Law § 70.02 [1]). Therefore, the defendant was erroneously sentenced on that count as a persistent violent felony offender (see CPL 400.16 [1]; Penal Law § 70.08). Ritter, J.P., Altman, H. Miller and Adams, JJ., concur.