People v Colon

People v Colon 2015 NY Slip Op 08625 Decided on November 24, 2015 Appellate Division, First 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 November 24, 2015
Gonzalez, P.J., Tom, Mazzarelli, Manzanet-Daniels, JJ.
16204 2854/07

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

v

Paul Colon, etc., Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (David P. Johnson of counsel), for respondent.

Judgment, Supreme Court, Bronx County (William L. McGuire, J.), rendered May 1, 2012, convicting defendant, after a jury trial, of murder in the first and second degrees, robbery in the first degree, burglary in the first degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 40 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that all sentences be served concurrently, resulting in a new an aggregate term of 25 years to life, and otherwise affirmed.

The court properly granted the People's challenge for cause to a prospective juror, a decision that is entitled to

considerable deference (see People v Panchon, 93 AD3d 446, 447 [1st Dept 2012], lv denied 19 NY3d 866 [2012]). The record supports the court's ruling that the prospective juror's ability to communicate in English was not sufficient for jury service. The court was able to rely on its own observations of the panelist's demeanor and difficulty in giving responsive answers (see People v Harris, 63 AD3d 480 [1st Dept 2009], lv denied 13 NY3d 796 [2009]).

Defendant's claim that burglary was improperly used as an aggravating factor to elevate murder in the second degree to first-degree murder is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find that the claim is without merit.

Defendant's public trial claim is unpreserved (see People v Alvarez, 20 NY3d 75, 81 [2012], cert denied 569 US , 133 S Ct 2004 [2013]), and we decline to review it in the interest of justice.

We find the sentence excessive to the extent indicated.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 24, 2015

CLERK