SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

107 

KA 10-00152 

PRESENT: CENTRA, J.P., CARNI, LINDLEY, GREEN, AND GORSKI, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RICHARD L. COLEMAN, DEFENDANT-APPELLANT. 

 

ADAM H. VAN BUSKIRK, AURORA, FOR DEFENDANT-APPELLANT. 

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Cayuga County Court (Thomas G.

Leone, J.), rendered November 12, 2009. The judgment convicted

defendant, upon a jury verdict, of robbery in the first degree,

burglary in the first degree, burglary in the second degree, criminal

possession of a weapon in the third degree, resisting arrest and grand

larceny 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 burglary in the second degree and dismissing count three

of the indictment and as modified the judgment is affirmed. 

Memorandum: Defendant was previously convicted upon his plea of

guilty of burglary in the first degree (Penal Law § 140.30 [2]),

resisting arrest (§ 205.30) and grand larceny in the third degree (§

155.35 [1]) in satisfaction of an indictment charging him with those

crimes and with robbery in the first degree (§ 160.15 [3]), burglary

in the second degree (§ 140.25 [2]) and criminal possession of a

weapon in the third degree (§ 265.02 [1]). Defendant was sentenced as

a second felony offender to concurrent terms of imprisonment, the

greatest of which was a determinate term of 18 years. This Court

affirmed that judgment of conviction on appeal (People v Coleman, 13

AD3d 1234, lv denied 4 NY3d 829). County Court (Leone, J.) thereafter

granted defendant’s motion to vacate the judgment of conviction

pursuant to CPL 440.10, and this Court affirmed the order granting 

defendant’s motion based on the failure of County Court (Corning, J.)

to advise him, prior to the entry of the plea, that he would be

subject to a period of postrelease supervision (People v Coleman, 61

AD3d 1383).

Defendant now appeals from a judgment convicting him following a

jury trial of the six counts in the indictment and sentencing him,

inter alia, as a persistent felony offender to concurrent
-2- 107 

KA 10-00152 

indeterminate terms of imprisonment of 18 years to life on each felony

count. We reject the contentions of defendant that the persistent

felony offender sentencing scheme is unconstitutional (see Portalatin

v Graham, 624 F3d 69, 93-94), that County Court (Leone, J.) sentenced

him as a persistent felony offender for exercising his right to a jury

trial and thus that such sentencing was vindictive (see People v

Miller, 65 NY2d 502, 507-508, cert denied 474 US 951; see generally

People v Young, 94 NY2d 171, 177-180, rearg denied 94 NY2d 876), and

that his sentence is unduly harsh and severe. Also contrary to

defendant’s contention, the evidence, viewed in the light most

favorable to the People (see People v Contes, 60 NY2d 620, 621), is

legally sufficient to establish defendant’s identity as the

perpetrator of the crimes (see People v Jackson, 78 AD3d 1685), and to

establish that the board wielded by defendant constituted a dangerous

instrument within the meaning of Penal Law § 10.00 (13) (see Matter of

Shakiea B., 53 AD3d 1057, 1059). We reject the contention of

defendant that reversal is required based upon the procedure employed

by the court after receiving a note from the jury that expressed

concern about defendant’s notetaking during jury selection but

contained no substantive inquiry by the jurors (see People v Ochoa, 14

NY3d 180, 187-188; People v Gruyair, 75 AD3d 401, 402-403, lv denied

15 NY3d 852). Contrary to the further contention of defendant, he was

not denied his statutory right to a speedy trial (see CPL 30.30). The

People established that they timely announced readiness for trial

following their unsuccessful appeal of the order granting defendant’s

CPL 440.10 motion (see CPL 30.30 [5] [a]; see generally People v

Contrearas, 227 AD2d 907, 908). Defendant failed to preserve for our

review his contention that the court erred in denying his challenge

for cause to a prospective juror inasmuch as he did not exhaust his

peremptory challenges prior to the completion of jury selection (see

People v Walter, 34 AD3d 1259, 1260, lv denied 8 NY3d 845, 850).

As the People correctly concede, however, count three of the

indictment, charging defendant with burglary in the second degree,

must be dismissed as a lesser inclusory concurrent count of count two,

charging defendant with burglary in the first degree (see People v

Skinner, 211 AD2d 979, 980, lv denied 86 NY2d 741; People v Gloss, 83

AD2d 782). We therefore modify the judgment accordingly. We have

considered defendant’s remaining contentions and conclude that none

warrants reversal of the judgment or further modification thereof. 

Entered: March 25, 2011 Patricia L. Morgan

Clerk of the Court