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

880
KA 09-01305
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

FLOYD L. SMART, DEFENDANT-APPELLANT.


MARK D. FUNK, ROCHESTER, FOR DEFENDANT-APPELLANT.

FLOYD L. SMART, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (William F.
Kocher, A.J.), rendered May 13, 2009. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of burglary in the second degree (Penal Law §
140.25 [2]). He was sentenced as a persistent felony offender to an
indeterminate term of incarceration of 20 years to life. On appeal,
defendant contends that the court reporter’s readback of certain
testimony in response to a jury note violated the procedures set forth
in CPL 310.30 and constituted an improper delegation of judicial
authority (see generally People v O’Rama, 78 NY2d 270, 276-277; People
v Ahmed, 66 NY2d 307, 310, rearg denied 67 NY2d 647). Defendant
further contends that, by sending a note to the jury during
deliberations, County Court violated defendant’s fundamental right to
be present at a material stage of trial (see generally People v
Mehmedi, 69 NY2d 759, 760, rearg denied 69 NY2d 985). We note at the
outset that, contrary to defendant’s contention, the court did not
thereby commit mode of proceedings errors such that preservation is
not required. In responding to the jury note and directing the
readback of testimony with respect to the note, the record establishes
that the court fulfilled its “core responsibilities under CPL 310.30”
(People v Tabb, 13 NY3d 852, 853; see People v Geroyianis, 96 AD3d
1641, 1643, lv denied 19 NY3d 996; People v Bonner, 79 AD3d 1790,
1790-1791, lv denied 17 NY3d 792). Prior to responding to the jury
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note, the court read it into the record, solicited input from defense
counsel, and described its proposed response. Then, when the jury
clarified its request in the note, the court reporter read the
relevant portion of the testimony into the record, under the
supervision of the court and in the presence of defendant and the
prosecutor. Defendant registered no objections. We thus conclude
that defendant was required to preserve his contentions for our
review, but he failed to do so (see People v Ramirez, 15 NY3d 824,
825-826; People v Starling, 85 NY2d 509, 516; People v Rivera, 83 AD3d
1370, 1370-1371, lv denied 17 NY3d 904; cf. People v Kisoon, 8 NY3d
129, 134-135). In any event, defendant’s contentions are without
merit (see People v Hernandez, 94 NY2d 552, 555-556; People v Harris,
76 NY2d 810, 812; People v Gabot, 176 AD2d 894, 894-895, lv denied 79
NY2d 947).

     We reject defendant’s further contention that the court erred in
admitting the grand jury testimony of a witness after conducting a
Sirois hearing (see Matter of Holtzman v Hellenbrand, 92 AD2d 405,
407-408). The People presented clear and convincing evidence
establishing that misconduct by defendant and his mother, who acted at
defendant’s behest, caused the witness to be unavailable to testify at
trial (see People v Geraci, 85 NY2d 359, 370-371; People v Dickerson,
55 AD3d 1276, 1277, lv denied 11 NY3d 924; People v Major, 251 AD2d
999, 999-1000, lv denied 92 NY2d 927).

     Defendant’s challenge in his pro se supplemental brief to the
constitutionality of New York’s discretionary persistent felony
offender sentencing statute is unpreserved for our review (see People
v Rosen, 96 NY2d 329, 333-335), and in any event is without merit (see
People v Quinones, 12 NY3d 116, 122-131, cert denied ___ US ___, 130 S
Ct 104; People v Bastian, 83 AD3d 1468, 1470, lv denied 17 NY3d 813).

     We conclude, however, that, while the court did not abuse its
discretion in sentencing defendant as a persistent felony offender,
the sentence nevertheless is unduly harsh and severe. This Court “has
broad, plenary power to modify a sentence that is unduly harsh or
severe under the circumstances, even though the sentence may be within
the permissible statutory range” (People v Delgado, 80 NY2d 780, 783;
see CPL 470.15 [6] [b]). That “sentence-review power may be
exercised, if the interest of justice warrants, without deference to
the sentencing court” (Delgado, 80 NY2d at 783). As a result, we may
“ ‘substitute our own discretion for that of a trial court which has
not abused its discretion in the imposition of a sentence’ ” (People v
Patel, 64 AD3d 1246, 1247). We conclude that a reduction in sentence
is appropriate under the circumstances presented here. Although
burglary in the second degree is classified as a violent felony
offense (Penal Law §§ 70.02 [1] [b]; 140.25 [2]), defendant did not
employ actual violence in the instant offense despite being confronted
by the woman whose residence he unlawfully entered. With the possible
exception of two misdemeanor convictions of resisting arrest and
criminal possession of a weapon dating to the 1980s, and a 2001 felony
conviction of burglary in the second degree, the circumstances of
which are unknown, it does not appear that defendant, despite a
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                                                         KA 09-01305

lengthy criminal record, has ever used or threatened violence in the
commission of a crime. Therefore, as a matter of discretion in the
interest of justice, we modify the judgment by reducing the sentence
imposed to an indeterminate term of incarceration of 15 years to life
(see CPL 470.20 [6]; People v Daggett, 88 AD3d 1296, 1298, lv denied
18 NY3d 956; People v Currier, 83 AD3d 1421, 1423, amended on rearg 85
AD3d 1657). We note, in response to the dissent, that we are only
modifying the minimum term of defendant’s sentence. Because we are
not vacating the court’s discretionary sentencing of defendant as a
persistent felony offender, the maximum term must remain unchanged.
Given the lack of violence in defendant’s criminal history, we
conclude that 15 years is sufficient both as a minimum period of
incarceration and for defendant to establish whether he has earned the
right to parole.

     We have reviewed defendant’s remaining contentions in his pro se
supplemental brief and conclude that none warrants reversal or further
modification of the judgment.

     All concur except SCUDDER, P.J., and MARTOCHE, J., who dissent in
part and vote to affirm in the following Memorandum: We respectfully
dissent in part and would affirm the judgment of conviction without
reducing defendant’s sentence. In our view, the sentence is not
unduly harsh or severe and thus, under the circumstances of this case,
we see no reason to reduce the sentence as a matter of discretion in
the interest of justice.

     Defendant was charged with burglary in the second degree (Penal
Law § 140.25 [2]) and, following a jury trial, was convicted of that
charge. The conviction arose out of an incident in which defendant,
with two others, entered a home and stole several items of property.
Defendant was identified by the resident as one of the people she saw
running from her home when she returned there.

     Prior to trial, a Sirois hearing was held in connection with the
People’s request to present at trial the grand jury testimony of a
witness who allegedly was unavailable as a result of defendant’s
actions and threats (see Matter of Holtzman v Hellenbrand, 92 AD2d
405, 410). The People alleged that defendant made telephone calls to
his mother from the Monroe County Jail, in which he encouraged his
mother to keep the witness from testifying. The People further
alleged that, during those conversations, defendant’s mother had
described her efforts at keeping the witness “high” to prevent her
from coming to court. Defendant allegedly told his mother, “that is
not enough,” and he further told her that she needed to get the
witness “out of town.” The People alleged that they were unable to
locate the witness and requested a hearing to determine her
unavailability as a result of defendant’s actions. In fact, at the
Sirois hearing, an investigator with the Monroe County Sheriff’s
Office testified that he listened to telephone calls between defendant
and his mother and that during one of the telephone calls defendant
told his mother that if the witness “walks into the courtroom [he
would] get 15 to life. If she doesn’t [he would] probably get a
misdemeanor or go scott free.” County Court concluded that the People
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                                                         KA 09-01305

proved by clear and convincing evidence that the witness’s
unavailability was the result of defendant’s actions to keep the
witness from testifying and granted the People’s request to present
that witness’s grand jury testimony at trial.

     Also prior to trial, defendant was offered a plea bargain
pursuant to which he would be sentenced as a violent felony offender
to a seven-year determinate term of imprisonment with five years of
postrelease supervision. Defendant was advised that if he declined
the offer and chose to go to trial, he was facing persistent felony
offender (PFO) status if convicted with a sentence range of a minimum
of 15 years to life and a maximum of 25 years to life.

     After defendant was convicted he moved to set aside the verdict
and, after hearing argument, the court denied the motion. The court
then proceeded to the sentence phase. Defense counsel raised a
question regarding the presentence report (PSI) and whether it had
been updated since defendant’s prior felony conviction in 2001. The
court indicated that it did not see a need to “order anything further
on the PSI” because, from the time of the prior PSI, defendant had
been incarcerated except for a very brief period until he committed
the instant offense. The court then reviewed defendant’s prior
criminal record and defense counsel advised the court that there was
an offer, to “obviate the need” for a PFO hearing, that defendant
would be incarcerated to “a straight 15 years[’] determinate to a
burglary two with five years[’] post release supervision.” Defense
counsel added that he believed that the sentence would be illegal
because it would “exceed the maximum on the C felony,” i.e., if
defendant were to violate the five years’ postrelease supervision
aspect of the offer, “he would be in jeopardy of another five years,
which would make it beyond the maximum.” Defense counsel added that,
in any event, defendant would not accept the offer because it was
contingent on defendant waiving his right to appeal, which was
something defendant was not “prepared to do.”

     The People established at the PFO hearing that defendant was
convicted of criminal possession of stolen property in the third and
fourth degrees in 1994 (and was sentenced to terms of incarceration of
3½ to 7 years and 2 to 4 years, respectively), and that he was
convicted of burglary in the second degree in 2001 (and was sentenced
to a term of incarceration of 6 years followed by 5 years’ postrelease
supervision). A 1989 conviction of burglary in the second degree was
reversed (People v Smart, 171 AD2d 1072). It was revealed that
defendant was out of jail on the 2001 burglary conviction for less
than four months before committing the instant offense. Defendant did
not testify at the hearing.

     The court, citing defendant’s 25-year criminal history and 15
prior convictions, three of which were felonies (although one was
reversed), and his “numerous” violations of probation and parole,
found that PFO sentencing was warranted in this case and sentenced
defendant to an indeterminate term of incarceration of 20 years to
life.
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     “The power of the Appellate Division to reduce a sentence, which
it finds unduly harsh or severe, in the interest of justice and impose
a lesser one has long been recognized in this State” (People v
Thompson, 60 NY2d 513, 520). The power originally was exercised as an
inherent power (see People v Miles, 173 App Div 179, 183-184) and was
later codified in section 543 of the Code of Criminal Procedure (see
Thompson, 60 NY2d at 520). Upon adoption of the Criminal Procedure
Law in 1971, the Legislature expressly authorized the practice without
substantive change (see CPL 470.15 [6] [b]; 470.20 [6]). Notably, the
Court of Appeals is without similar authority (see People v Quinones,
12 NY3d 116, 130 n 6, cert denied ___ US ___, 130 S Ct 104). Thus,
any reduction of a sentence by the Appellate Division is not subject
to further review.

     We recognize that the Appellate Division has discretion in
determining whether a sentence is unduly harsh or severe. We further
recognize that we should exercise that discretion in “unique and
narrow circumstances” (People v Khuong Dinh Pham, 31 AD3d 962, 967).
For example, in Khuong Dinh Pham, the defendant had lived a crime-
free, respectable life since the crime was committed and had no prior
criminal record. Additionally, the defendant played a minor role in
the crime of which he was convicted. Similarly, in People v Wilt (18
AD3d 971, 973, lv denied 5 NY3d 771), the factors weighing in favor of
a sentence reduction were the defendant’s youth, his lack of a
criminal record, and his impaired emotional and mental health.

     By contrast, here the People noted at sentencing that defendant’s
criminal record “consisted of approximately 11 misdemeanor
convictions, five felony convictions, one of which is a violent felony
offense for burglary in the second degree,” and that defendant’s
“history and character demonstrate that society would best be served
if he was sentenced to an extended period of incarceration and
lifetime supervision” (see Penal Law § 70.10 [2]). The People asked
that defendant be sentenced to the maximum term of 25 years to life as
a persistent felony offender. Defense counsel’s response to the
People’s request for the imposition of the maximum term of
incarceration was to “continue to assert” defendant’s innocence.
Defendant was given an opportunity to speak and told the court that
his “conviction is wrong.” Defendant further told the court that he
“never intended for [the witness] to not come to trial. In fact, I
begged her to come to trial and tell the truth over and over and over,
amongst other things, but she wouldn’t do it.” Notably, the
uncontradicted testimony of several police officers at the Sirois
hearing established the existence of numerous telephone calls
involving defendant that concerned the victim, and established that
defendant did not want the witness to testify at trial and took steps
to ensure that she not do so. Ultimately, when the court sentenced
defendant, it stated that, “if you’re not a persistent felony
offender, I don’t know who is.” The court further stated, while
addressing defendant, that “when you do get out, I have this fear and
concern that you’re just going to continue this type of conduct . . .
[A]pparently everything you have done since you were back in your
teens has been criminal in nature.” The PSI report confirms the
court’s assessment of defendant. Defendant was born on September 9,
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1965, and had a juvenile criminal history. His first arrest as an
adult occurred on December 16, 1982 and the PSI lists 24 arrests apart
from the arrest in this case. Many of those arrests were for
burglary, grand larceny and criminal possession of stolen property.

     The majority, while recognizing that defendant was convicted of a
violent felony offense, nevertheless concludes that, because no actual
violence was employed during the commission of the offense,
defendant’s sentence should be reduced to the statutory minimum. In
our view, that position not only usurps the discretion of the trial
court in imposing a sentence, but it also usurps the authority of the
Legislature in categorizing offenses. Penal Law § 140.25 contains two
subdivisions, with the common element that a person knowingly enter or
remain unlawfully in a building with intent to commit a crime therein.
The first subdivision requires the additional element of the person or
another participant in the crime: being armed with explosives or a
deadly weapon; causing physical injury to any person not a participant
in the crime; using or threatening the immediate use of a dangerous
instrument; or displaying what appears to be a pistol, revolver,
rifle, shotgun, machine gun or other firearm (§ 140.25 [1] [a] - [d]).
In the alternative, a person is also guilty of burglary in the second
degree when he or she knowingly enters or remains unlawfully in a
building with intent to commit a crime therein and that building is a
dwelling (§ 140.25 [2]), the crime of which defendant here was
convicted. Both categories of the crime of burglary in the second
degree have been deemed violent felonies by the Legislature (see §
70.02 [1] [b]).

     In People v Johnson (38 AD3d 1057, 1059), the defendant
challenged the trial court’s imposition of a sentence for burglary in
the second degree as a violent felony offense on the ground that the
legislative classification of burglary in the second degree as a
violent felony where no violence was used or proven was
unconstitutional or illegal. The defendant argued “that he was denied
due process because he was not allowed to contest this classification”
(id.). The Third Department concluded that it was “the Legislature’s
function to classify crimes and to ‘distinguish among the ills of
society which require a criminal sanction, and prescribe, as it
reasonably views them, punishments appropriate to each’ ” (id.,
quoting People v Broadie, 37 NY2d 100, 110). The Third Department
further noted that, “[s]ince the 1981 amendments to Penal Law § 140.25
(2) (L 1981, ch 361), the Legislature determined ‘to classify all
burglaries of dwellings as class C or higher violent felonies . . .
apparently based upon its assessment that the potential for violence
was the same irrespective of the time of their commission,’ abrogating
the distinction between those committed at night and those committed
during the day” (id.). In our view, the fact that defendant did not
employ actual violence in committing the instant offense should not
inure to his benefit; the Legislature has unequivocally indicated its
intent that the crime committed by defendant be considered a violent
felony offense, regardless of whether actual violence was employed.

     In our view, reducing defendant’s sentence improperly interferes
with the broad province of the trial court, which not only considered
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defendant’s extraordinarily lengthy criminal history, his lack of
remorse and his denial of his involvement in the crime, but also
considered defendant’s significant attempts to prevent a witness from
testifying and the impact of the crime on the victim.

     For all of the above-stated reasons, we cannot agree with the
majority that the sentence imposed, which fell at the mid-point
between the range of minimum and maximum sentencing, was unduly harsh
or severe.




Entered:   November 16, 2012                    Frances E. Cafarell
                                                Clerk of the Court
