People v Rios

People v Rios 2007 NY Slip Op 07886 [44 AD3d 494] October 18, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

The People of the State of New York, Respondent,
v
Johnny Rios, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York City (Jessica A. Yager of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Jessica Slutsky of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered February 19, 2004, convicting defendant, after a jury trial, of attempted sodomy in the first degree (four counts), sexual abuse in the first degree (two counts), public lewdness (two counts) and sexual abuse in the third degree, and sentencing him to an aggregate term of 37 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that all sentences run concurrently, resulting in a new aggregate term of 15 years, and otherwise affirmed.

We need not determine whether the court properly exercised its discretion in receiving evidence of an uncharged crime, as any error in the admission of this evidence was harmless given the overwhelming evidence of guilt and the court's limiting instruction.

Defendant's arguments as to the People's opening statement and summation and the court's charge are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

We find the sentence, which is deemed pursuant to the Penal Law to be 20 years, excessive to the extent indicated. Concur—Nardelli, J.P., Gonzalez, Sweeny, McGuire and Kavanagh, JJ.