SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1450 

KA 11-00847 

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

WILLIAM M. DEAN, DEFENDANT-APPELLANT. 

 

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT. 

 

Appeal from a judgment of the Ontario County Court (Craig J.

Doran, J.), rendered March 29, 2011. The judgment convicted

defendant, upon a jury verdict, of burglary in the second degree

(three counts), grand larceny in the third degree, criminal mischief

in the second degree, petit larceny, grand larceny in the fourth

degree (two counts) and criminal mischief in the third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating the sentence imposed on

count three and as modified the judgment is affirmed, and the matter

is remitted to Ontario County Court for resentencing on that count. 

Memorandum: On appeal from a judgment convicting him following a

jury trial of various crimes arising out of three burglaries,

defendant contends that the conviction is not supported by legally

sufficient evidence because the jury made inferences from other

inferences in reaching its verdict. Defendant failed to preserve that

contention for our review because he failed to renew his motion for a

trial order of dismissal on that ground after presenting evidence (see

People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). Viewing

the evidence in light of the elements of the crimes as charged to the

jury (see People v Danielson, 9 NY3d 342, 349), we further conclude

that the verdict is not against the weight of the evidence (see

generally People v Bleakley, 69 NY2d 490, 495). With respect to

defendant’s contention that he was denied effective assistance of

counsel, we conclude that “the evidence, the law, and the

circumstances of [this] particular case, viewed in totality and as of

the time of the representation, reveal that the attorney provided

meaningful representation” (People v Baldi, 54 NY2d 137, 147). 

Defendant has failed to demonstrate “the absence of strategic or other

legitimate explanations” for the various allegations of

ineffectiveness (People v Rivera, 71 NY2d 705, 709).
-2- 1450 

KA 11-00847 

Defendant contends that the prosecutor engaged in misconduct on

summation but failed to preserve for our review any of the alleged

instances of misconduct (see CPL 470.05 [2]; People v Cox, 21 AD3d

1361, 1363-1364, lv denied 6 NY3d 753), and we decline to exercise our

power to review defendant’s contention as a matter of discretion in

the interest of justice (see CPL 470.15 [6] [a]). Defendant further

contends that County Court violated the Confrontation Clause by ruling

that defense counsel opened the door to a hearsay statement. We

reject that contention. In People v Reid (19 NY3d 382, 384-385), the

Court of Appeals concluded that the door could be opened to evidence

that was otherwise inadmissible under the Confrontation Clause. We

further conclude that the rule enunciated in Reid should be applied

retroactively (see People v Pepper, 53 NY2d 213, 219-221, cert denied

454 US 967). 

We note that there is discrepancy between the certificate of

conviction and the sentencing minutes with respect to count three,

charging defendant with burglary in the second degree (Penal Law §

140.25 [2]). Defendant was sentenced to a determinate term of five

years’ imprisonment with three years’ postrelease supervision, but the

certificate of conviction states that defendant was sentenced to seven

years’ imprisonment with five years’ postrelease supervision. In

addition, the period of postrelease supervision must in any event be

at least five years (see §§ 70.00 [6]; 70.06 [6] [b]; 70.45 [2]). 

Thus, we modify the judgment by vacating the sentence imposed on count

three, and we remit the matter to County Court for resentencing on

count three and for the court to correct the discrepancy between the

certificate of conviction and the sentencing minutes regarding that

count (see People v Hall, 5 AD3d 1011, 1011-1012). 

We have considered defendant’s remaining contentions and conclude

that they are without merit. 

Entered: December 28, 2012 Frances E. Cafarell

Clerk of the Court