        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
