People v Ortiz

People v Ortiz 2007 NY Slip Op 05416 [41 AD3d 276] June 21, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Monday, January 14, 2008

The People of the State of New York, Respondent,
v
Scott Ortiz, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Bruce D. Austern of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Richard Lee Price, J.), rendered April 6, 2006, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously affirmed.

The court properly exercised its discretion in denying defendant's mistrial motion based on a portion of the prosecutor's summation. The court prevented any possible prejudice when it sustained defendant's objection and provided suitable curative instructions (see e.g. People v Singleton, 270 AD2d 190 [2000], lv denied 95 NY2d 858 [2000]).

The court properly exercised its discretion in sentencing defendant as a persistent felony offender. The record establishes sufficient basis for an adjudication based on defendant's criminal history. Furthermore, the medical evidence of record indicates that defendant will still be physically capable of reverting to robbery should a shorter sentence be imposed. The adjudication procedure was constitutional (see People v Rivera, 5 NY3d 61 [2005], cert denied 546 US 984 [2005]). Concur—Sullivan, J.P., Nardelli, Williams, Gonzalez and Catterson, JJ.