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

806
KA 09-00043
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DWAYNE D. WRIGHT, DEFENDANT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered July 17, 2008. The judgment convicted defendant,
upon a jury verdict, of robbery in the first degree (three counts),
robbery in the second degree and criminal possession of a weapon 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 robbery in the second degree under count four of the
indictment and dismissing that count and as modified the judgment is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of three counts of robbery in the first degree
(Penal Law § 160.15 [2] - [4]) and one count each of robbery in the
second degree (§ 160.10 [2] [b]) and criminal possession of a weapon
in the third degree (§ 265.02 [1]). Defendant failed to preserve for
our review his contention that the third and fourth counts of the
indictment are duplicitous (see People v Sponburgh, 61 AD3d 1415, lv
denied 12 NY3d 929). In any event, that contention is without merit
inasmuch as “[e]ach count of [the] indictment . . . charge[s] one
offense only” (CPL 200.30 [1]; see generally People v Keindl, 68 NY2d
410, 417, rearg denied 69 NY2d 823). We agree with defendant,
however, that the fourth count of the indictment, charging defendant
with robbery in the second degree (Penal Law § 160.10 [2] [b]), is an
inclusory concurrent count of robbery in the first degree as charged
in the third count of the indictment (§ 160.15 [4]), and thus should
be dismissed. Although defendant correctly concedes that he failed to
preserve that contention for our review, we note that preservation is
not required and thus that count four “must be dismissed as a matter
of law because a verdict of guilty upon the greater [count] is deemed
a dismissal of every lesser [inclusory concurrent count]” (People v
Rodrigues, 74 AD3d 1818, 1819, lv denied 15 NY3d 809, cert denied ___
                                 -2-                           806
                                                         KA 09-00043

US ___, 131 S Ct 1505 [internal quotation marks omitted]; see CPL
300.40 [3] [b]; People v Skinner, 211 AD2d 979, 980, lv denied 86 NY2d
741). We therefore modify the judgment accordingly.

     Defendant failed to preserve for our review his contention that
he was denied a fair trial based upon two instances of alleged
prosecutorial misconduct on summation (see CPL 470.05 [2]; People v
Hill, 82 AD3d 1715) and, in any event, that contention is without
merit. The statement of the prosecutor in which he addressed the
reason for the absence of a particular item of physical evidence from
the evidence inventory was a “fair response to defense counsel’s
summation” (People v Anderson, 52 AD3d 1320, 1321, lv denied 11 NY3d
733), and it “ ‘did not exceed the broad bounds of rhetorical comment
permissible in closing argument’ ” (People v Williams, 28 AD3d 1059,
1061, affd 8 NY3d 854, quoting People v Galloway, 54 NY2d 396, 399).
Although we agree with defendant that the reference by the prosecutor
to defendant’s parole status was improper in light of County Court’s
ruling concerning such status, we conclude that defendant was not
deprived of a fair trial by that single instance of misconduct (see
generally Galloway, 54 NY2d at 401; People v Seeler, 63 AD3d 1595,
1596-1597, lv denied 13 NY3d 838).

      We reject the further contention of defendant that the court’s
Sandoval ruling constitutes an abuse of discretion. The record
establishes that the court, upon properly weighing the probative value
of defendant’s prior convictions against their potential for prejudice
(see People v Freeney, 291 AD2d 913, 914, lv denied 98 NY2d 637),
ruled that the People were limited to cross-examining defendant only
with respect to the fact that he had two prior felony convictions (see
generally People v Hayes, 97 NY2d 203, 207-208). We likewise reject
defendant’s contention that he was denied effective assistance of
counsel (see generally People v Baker, 14 NY3d 266, 270-271; People v
Baldi, 54 NY2d 137, 147). We further conclude that the evidence is
legally sufficient to support defendant’s conviction of the three
counts of robbery in the first degree and the count of criminal
possession of a weapon in the third degree (see generally People v
Bleakley, 69 NY2d 490, 495) and, viewing the evidence in light of the
elements of those crimes as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we conclude that the verdict is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495).

      Finally, we reject defendant’s contention that the sentence is
unduly harsh and severe, and we note that he failed to preserve for
our review his further contention that the sentence imposed
constitutes cruel and unusual punishment (see People v Reese, 31 AD3d
582, lv denied 7 NY3d 851). In any event, that further contention
lacks merit. Defendant’s sentence is not “ ‘grossly disproportionate
to the crime’ ” and thus does not constitute cruel and unusual
punishment (People v Holmquist, 5 AD3d 1041, 1042, lv denied 2 NY3d
                                 -3-                           806
                                                         KA 09-00043

800; see generally People v Thompson, 83 NY2d 477, 479-480).




Entered:   June 10, 2011                       Patricia L. Morgan
                                               Clerk of the Court
