People v. Martinez , 36 N.Y.S.3d 923 ( 2016 )

People v Martinez (2016 NY Slip Op 05932)

People v Martinez

2016 NY Slip Op 05932

Decided on August 31, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 31, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
L. PRISCILLA HALL
SANDRA L. SGROI
BETSY BARROS, JJ.

2011-03914
(Ind. No. 10487/09)

[*1]The People of the State of New York, respondent,

v

Gene Martinez, appellant.

Lynn W. L. Fahey, New York, NY (Steven R. Bernhard of counsel), for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Balter, J.), rendered March 21, 2011, convicting him of burglary in the second degree (three counts), upon a jury verdict, and sentencing him to consecutive indeterminate terms of imprisonment of 16 years to life on each count.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the indeterminate terms of imprisonment of 16 years to life on each count shall run concurrently with each other; as so modified, the judgment is affirmed.

The defendant's contention that his trial counsel was ineffective is without merit. The evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that counsel provided meaningful representation (see People v Benevento, 91 NY2d 708, 712; People v Baldi, 54 NY2d 137).

In the exercise of our interest of justice jurisdiction, we modify the sentence imposed to provide that the indeterminate terms of imprisonment of 16 years to life on each count shall run concurrently with each other (see People v Diaz, 259 AD2d 628). In light of this modification, it is unnecessary to reach the defendant's remaining contention.

Finally, the People contend that the Supreme Court improperly classified the defendant as a persistent felony offender rather than a persistent violent felony offender. However, the People have not appealed from the judgment and, since the court's classification did not adversely affect the defendant, the People may not obtain a reclassification of his status on this appeal (see CPL 470.15; People v Davis, 96 AD2d 748, 749).

MASTRO, J.P., HALL, SGROI and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court