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

1408
KA 13-00422
PRESENT: SMITH, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

MARK DANIELS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the   Erie County Court (Michael L.
D’Amico, J.), rendered January 18,   2013. The judgment convicted
defendant, upon a nonjury verdict,   of robbery in the second degree
(two counts), grand larceny in the   third degree and reckless driving.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence imposed on
count four of the indictment and imposing a definite sentence of 30
days’ imprisonment on that count, to run concurrently with the
sentences imposed on counts one, two, and three, and as modified the
judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of two counts of robbery in the second degree
(Penal Law § 160.10 [2] [a]), and one count each of grand larceny in
the third degree (§ 155.35 [1]) and reckless driving (Vehicle and
Traffic Law § 1212), in connection with a bank robbery and the flight
therefrom, which resulted in injuries to two innocent civilians.

     We reject defendant’s contention that the evidence is legally
insufficient to support the robbery and grand larceny convictions.
Viewing the evidence in the light most favorable to the People (see
People v Contes, 60 NY2d 620, 621), we conclude that there is a valid
line of reasoning and permissible inferences that could lead the court
in this nonjury trial to find that defendant forcibly stole money in
excess of $3,000 from the bank. “Although the employees of the bank
robbed by defendant . . . could not specifically identify defendant,
the element of identity was established by a compelling chain of
circumstantial evidence that had no reasonable explanation except that
defendant was . . . the perpetrator[]” (People v Brown, 92 AD3d 1216,
1217, lv denied 18 NY3d 992). That evidence included the stolen GPS
unit and prerecorded bait money in defendant’s bag that he dropped
                                 -2-                          1408
                                                         KA 13-00422

when apprehended by the police, clothing removed from defendant at the
hospital that matched the bank employees’ descriptions, and the
presence of defendant’s DNA on clothing found in the middle of
defendant’s route in fleeing from the bank. Furthermore, viewing the
evidence in the light of the elements of the crimes in this nonjury
trial (see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
contention that the verdict is against the weight of the evidence with
respect to the robbery and grand larceny convictions (see generally
People v Bleakley, 69 NY2d 490, 495; People v Kirton, 36 AD3d 1011,
1013-1014, lv denied 8 NY3d 947).

     Finally, although not raised by defendant, we note that the
sentence imposed on count four of the indictment, i.e., a one-year
definite term of imprisonment for reckless driving, an unclassified
misdemeanor, is illegal (see Vehicle and Traffic Law § 1801 [1]; Penal
Law § 70.15 [3]), and we cannot allow that illegal sentence to stand
(see generally People v VanValkinburgh, 90 AD3d 1553, 1554). “In the
interest of judicial economy, we exercise our inherent authority to
correct the illegal sentence” (People v Perrin, 94 AD3d 1551, 1551).
We therefore modify the judgment by vacating the sentence imposed on
count four and imposing a definite sentence of 30 days’ imprisonment
on that count, to run concurrently with the sentences imposed on the
remaining counts of the indictment (Vehicle and Traffic Law § 1801
[1]). We otherwise conclude that the sentences imposed on the
remaining counts are not unduly harsh or severe.




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
