SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

806 

KA 09-00043 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DWAYNE D. WRIGHT, DEFENDANT-APPELLANT. 

 

PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Oneida County Court (Michael L.

Dwyer, J.), rendered July 17, 2008. The judgment convicted defendant,

upon a jury verdict, of robbery in the first degree (three counts),

robbery in the second degree and criminal possession of a weapon in

the third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reversing that part convicting

defendant of robbery in the second degree under count four of the

indictment and dismissing that count and as modified the judgment is

affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of three counts of robbery in the first degree

(Penal Law § 160.15 [2] - [4]) and one count each of robbery in the

second degree (§ 160.10 [2] [b]) and criminal possession of a weapon

in the third degree (§ 265.02 [1]). Defendant failed to preserve for

our review his contention that the third and fourth counts of the

indictment are duplicitous (see People v Sponburgh, 61 AD3d 1415, lv

denied 12 NY3d 929). In any event, that contention is without merit

inasmuch as “[e]ach count of [the] indictment . . . charge[s] one

offense only” (CPL 200.30 [1]; see generally People v Keindl, 68 NY2d

410, 417, rearg denied 69 NY2d 823). We agree with defendant,

however, that the fourth count of the indictment, charging defendant

with robbery in the second degree (Penal Law § 160.10 [2] [b]), is an

inclusory concurrent count of robbery in the first degree as charged

in the third count of the indictment (§ 160.15 [4]), and thus should

be dismissed. Although defendant correctly concedes that he failed to

preserve that contention for our review, we note that preservation is

not required and thus that count four “must be dismissed as a matter

of law because a verdict of guilty upon the greater [count] is deemed

a dismissal of every lesser [inclusory concurrent count]” (People v

Rodrigues, 74 AD3d 1818, 1819, lv denied 15 NY3d 809, cert denied ___
-2- 806 

KA 09-00043 

US ___, 131 S Ct 1505 [internal quotation marks omitted]; see CPL

300.40 [3] [b]; People v Skinner, 211 AD2d 979, 980, lv denied 86 NY2d

741). We therefore modify the judgment accordingly.

Defendant failed to preserve for our review his contention that

he was denied a fair trial based upon two instances of alleged

prosecutorial misconduct on summation (see CPL 470.05 [2]; People v

Hill, 82 AD3d 1715) and, in any event, that contention is without

merit. The statement of the prosecutor in which he addressed the

reason for the absence of a particular item of physical evidence from

the evidence inventory was a “fair response to defense counsel’s

summation” (People v Anderson, 52 AD3d 1320, 1321, lv denied 11 NY3d

733), and it “ ‘did not exceed the broad bounds of rhetorical comment

permissible in closing argument’ ” (People v Williams, 28 AD3d 1059,

1061, affd 8 NY3d 854, quoting People v Galloway, 54 NY2d 396, 399). 

Although we agree with defendant that the reference by the prosecutor

to defendant’s parole status was improper in light of County Court’s

ruling concerning such status, we conclude that defendant was not

deprived of a fair trial by that single instance of misconduct (see

generally Galloway, 54 NY2d at 401; People v Seeler, 63 AD3d 1595,

1596-1597, lv denied 13 NY3d 838).

We reject the further contention of defendant that the court’s

Sandoval ruling constitutes an abuse of discretion. The record

establishes that the court, upon properly weighing the probative value

of defendant’s prior convictions against their potential for prejudice

(see People v Freeney, 291 AD2d 913, 914, lv denied 98 NY2d 637),

ruled that the People were limited to cross-examining defendant only

with respect to the fact that he had two prior felony convictions (see

generally People v Hayes, 97 NY2d 203, 207-208). We likewise reject

defendant’s contention that he was denied effective assistance of

counsel (see generally People v Baker, 14 NY3d 266, 270-271; People v

Baldi, 54 NY2d 137, 147). We further conclude that the evidence is

legally sufficient to support defendant’s conviction of the three

counts of robbery in the first degree and the count of criminal

possession of a weapon in the third degree (see generally People v

Bleakley, 69 NY2d 490, 495) and, viewing the evidence in light of the

elements of those crimes as charged to the jury (see People v

Danielson, 9 NY3d 342, 349), we conclude that the verdict is not

against the weight of the evidence (see generally Bleakley, 69 NY2d at

495).

 Finally, we reject defendant’s contention that the sentence is

unduly harsh and severe, and we note that he failed to preserve for

our review his further contention that the sentence imposed

constitutes cruel and unusual punishment (see People v Reese, 31 AD3d

582, lv denied 7 NY3d 851). In any event, that further contention

lacks merit. Defendant’s sentence is not “ ‘grossly disproportionate

to the crime’ ” and thus does not constitute cruel and unusual

punishment (People v Holmquist, 5 AD3d 1041, 1042, lv denied 2 NY3d 
-3- 806 

KA 09-00043 

800; see generally People v Thompson, 83 NY2d 477, 479-480). 

 

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court