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

699
KA 06-03122
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JASON M. STUBBS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


WILLIAM G. PIXLEY, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Elma A.
Bellini, J.), rendered August 28, 2006. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree,
criminal possession of a weapon in the second degree and criminal
possession of a weapon in the third degree.

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed sentence on the conviction of criminal possession of a
weapon in the second degree and criminal possession of a weapon in the
third degree is unanimously dismissed and the judgment is modified on
the law by vacating the sentence imposed for murder in the second
degree and as modified the judgment is affirmed and the matter is
remitted to Monroe County Court for the filing of a predicate felony
offender statement and resentencing on count one of the indictment.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a jury trial of murder in the second degree
(Penal Law § 125.25 [1]), criminal possession of a weapon in the
second degree (§ 265.03 [former (2)]), and criminal possession of a
weapon in the third degree (§ 265.02 [former (4)]), arising from the
shooting death of the victim. In appeal No. 2, he appeals from a
resentence on the weapons possession counts. Viewing the evidence in
light of the elements of the crime of murder in the second degree as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict on that count is
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495). Even assuming, arguendo, that a different verdict
would not have been unreasonable, we conclude that the jury did not
fail to give the evidence of defendant’s intent the weight that it
should be accorded (see id.).

     Defendant’s objection with respect to the cross-examination of a
                                 -2-                           699
                                                         KA 06-03122

defense witness by the People was sustained, and defendant failed to
request a curative instruction with respect to that testimony.
Defendant thus failed to preserve for our review his contention that
County Court erred in failing to give a curative instruction (see
generally People v Rogers, 70 AD3d 1340, 1340, lv denied 14 NY3d 892,
cert denied ___ US ___, 131 S Ct 475). In any event, defendant’s
contention lacks merit.

      By failing to request that the court give an expanded charge on
identification, defendant failed to preserve for our review his
contention that the court erred in failing to do so (see generally
People v Robinson, 88 NY2d 1001, 1001-1002). In any event, that
contention is without merit inasmuch as the court’s charge “reasonably
mirrored the expanded identification charge . . . and ‘sufficiently
apprised the jury that the reasonable doubt standard applied to
identification’ ” (People v Brooks, 26 AD3d 867, lv denied 6 NY3d
892).

     We further conclude, however, that the record establishes that
defendant is a predicate felon and that the People failed to file the
requisite predicate felony offender statement. The court therefore
sentenced defendant as a first violent felony offender. “When it
became apparent at sentencing that defendant had a prior felony
conviction, the People were required to file a second felony offender
statement in accordance with CPL 400.21 and, if appropriate, the court
was then required to sentence defendant as a second felony offender .
. . ‘[I]t is illegal to sentence a known predicate felon as a first
offender’ ” (People v Griffin, 72 AD3d 1496, 1497). Because we cannot
permit an illegal sentence to stand (see People v VanValkinburgh, 90
AD3d 1553, 1554), we modify the judgment in appeal No. 1 and reverse
the resentence in appeal No. 2 by vacating the sentences imposed, and
we remit the matter to County Court for the filing of a predicate
felony offender statement and resentencing in accordance with the law
(see People v Worth, 83 AD3d 1547, 1548).




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