        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

727
KA 11-00376
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAY PECK, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered January 26, 2011. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree,
grand larceny in the third degree and conspiracy in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the surcharge to 5% of the
amount of restitution ordered and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of burglary in the second degree (Penal Law §
140.25 [2]), grand larceny in the third degree (former § 155.35) and
conspiracy in the fourth degree (§ 105.10 [1]). The charges stem from
defendant’s participation in a conspiracy to break into the apartment
of the victim, who was being detained with defendant at the Onondaga
County Jail. Through a series of recorded telephone conversations
between defendant, who was incarcerated, and his sister, defendant
directed his sister and her boyfriend to the victim’s apartment. Once
they arrived, defendant told them how to break into the victim’s
apartment and where to locate $9,000 in cash. Contrary to defendant’s
contention, County Court properly denied that part of his omnibus
motion seeking to dismiss the indictment on the ground that the
integrity of the grand jury proceeding was impaired when the tape-
recorded conversations were improperly admitted in evidence (see CPL
210.35 [5]). Although the People do not dispute the court’s
determination that they failed to establish an adequate foundation for
the admission of those recordings (see generally People v Ely, 68 NY2d
520, 527-528), they contend that the error did not require dismissal
of the indictment. We agree. “ ‘[T]he submission of some
inadmissible evidence [to the grand jury] will be deemed fatal only
when the remaining evidence is insufficient to sustain the indictment’
. . . and, here, the remaining evidence was legally sufficient to
                                 -2-                           727
                                                         KA 11-00376

support the indictment” (People v Tuszynski, 71 AD3d 1407, 1408, lv
denied 15 NY3d 810, quoting People v Huston, 88 NY2d 400, 409; see
People v Jeffery, 70 AD3d 1512, 1512-1513; cf. People v Barabash, 18
AD3d 474, 474-475).

     Defendant further contends that the court erred in allowing a
court officer to permit a deliberating juror to separate from the
other jurors to make a telephone call without first investigating the
necessity of such a telephone call or ensuring that the call was
supervised. It is undisputed that defendant raised no objection to
the procedures utilized by the court in handling the matter. We
reject defendant’s contention that his challenge may be reviewed even
in the absence of an objection. Violations of the sequestration
provision of CPL 310.10 are not errors that fall within the “very
narrow category of so-called ‘mode of proceedings’ errors” that are
reviewable even in the absence of a timely objection (People v
Agramonte, 87 NY2d 765, 770). That is because “the sequestration
requirement does not ‘entail[] a part of the process . . . essential
to the form and conduct of the actual trial’ ” (id., quoting People v
Webb, 78 NY2d 335, 339; see e.g. People v Williams, 221 AD2d 246, 247,
lv denied 87 NY2d 926; People v Thurman, 186 AD2d 484, 484-485, lv
denied 81 NY2d 795). 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]).

     Contrary to defendant’s further contention, he was not punished
for asserting his right to trial. “ ‘The mere fact that [the]
sentence imposed after trial is greater than that offered in
connection with plea negotiations is not proof that defendant was
punished for asserting his right to trial’ ” (People v Powell, 81 AD3d
1307, 1308, lv denied 17 NY3d 799; see People v Glynn, 93 AD3d 1341,
1342-1343; see generally People v Pena, 50 NY2d 400, 411-412, rearg
denied 51 NY2d 770, cert denied 449 US 1087). “In addition, ‘[t]he
fact that defendant’s sentence was greater than that of his
codefendant[s, who accepted plea agreements,] does not substantiate
his [contention] that he was improperly punished for going to trial’ ”
(People v Smith, 90 AD3d 1565, 1567, quoting People v Elwood, 80 AD3d
988, 990, lv denied 16 NY3d 858; see People v Eddins, 168 AD2d 630,
631, lv denied 78 NY2d 954).

     Although we conclude that the sentence is not unduly harsh or
severe, we note that the People correctly concede that the court erred
in imposing a 10% surcharge on the amount of restitution ordered and
instead should have imposed a surcharge of 5% (see Penal Law § 60.27
[8]; People v Lagasse, 68 AD3d 1718, lv denied 14 NY3d 889; People v
Gahrey M.O., 231 AD2d 909, 909-910). We therefore modify the judgment
accordingly.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
