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

828
KA 15-00008
PRESENT: CARNI, J.P., LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANDY ASHKAR, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered July 23, 2013. The judgment convicted defendant,
upon a nonjury verdict, of criminal possession of stolen property in
the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentence imposed to an indeterminate term of 5
to 15 years, and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of criminal possession of stolen property in
the first degree (Penal Law § 165.54). Defendant failed to preserve
for our review his contention that his waiver of the right to a jury
trial is invalid on the ground that the record fails to establish
either that he signed the written waiver in open court (see People v
Dixon, 113 AD3d 1104, 1104, lv denied 23 NY3d 962), or that the waiver
was knowing, intelligent, and voluntary (see People v Magnano, 158
AD2d 979, 979, affd 77 NY2d 941, cert denied 502 US 864; People v
Dallas, 119 AD3d 1362, 1364, lv denied 24 NY3d 1083). We decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]).

     By failing to renew his motion for a trial order of dismissal
after presenting evidence, defendant failed to preserve for our review
his challenge to the legal sufficiency of the evidence (see People v
Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event,
viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), we conclude that the evidence is
legally sufficient to establish that defendant “knowingly possesse[d]
stolen property,” i.e., a winning $5 million lottery ticket, and that
“the value of the property exceed[ed] one million dollars” (Penal Law
                                 -2-                           828
                                                         KA 15-00008

§ 165.54; see § 155.20 [2] [c]). Viewing the evidence in light of the
elements of the crime in this nonjury trial (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).

     We reject defendant’s contention that he was denied effective
assistance of counsel. Defense counsel’s representation was not
ineffective based upon his failure to object to alleged instances of
prosecutorial misconduct (see People v Swan, 126 AD3d 1527, 1527), to
renew his motion for a trial order of dismissal at the close of the
evidence (see People v Woodard, 96 AD3d 1619, 1621, lv denied 19 NY3d
1030), or to cross-examine the victim more vigorously (see People v
Adams, 247 AD2d 819, 819, lv denied 91 NY2d 1008). Rather, the
evidence, the law, and the circumstances of this case, viewed in
totality and as of the time of the representation, establish that
defendant was afforded meaningful representation (see generally People
v Baldi, 54 NY2d 137, 147). To the extent that defendant’s contention
is based upon defense counsel’s allegedly inadequate or erroneous
advice concerning defendant’s waiver of a jury trial, the contention
is properly raised in a motion pursuant to CPL 440.10 (see Magnano,
158 AD2d at 979).

     We agree with defendant, however, that the imposition of the
maximum sentence is unduly harsh and severe, particularly in light of
the fact that defendant has no prior criminal history and his crime
did not involve the use of violence or threats thereof. We therefore
modify the judgment as a matter of discretion in the interest of
justice by reducing the sentence imposed to an indeterminate term of
incarceration of 5 to 15 years, which is the sentence that the People
requested after defendant was convicted.




Entered:   July 10, 2015                        Frances E. Cafarell
                                                Clerk of the Court
