People v Fulton

People v Fulton 2010 NY Slip Op 03660 [72 AD3d 1609] April 30, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 9, 2010

The People of the State of New York, Respondent, v Derrick R. Fulton, Appellant.

—[*1] Frank J. Nebush, Jr., Public Defender, Utica (Mark C. Curley of counsel), for defendant-appellant.

Scott D. McNamara, District Attorney, Utica (Matthew P. Worth of counsel), for respondent.

Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered August 8, 2008. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree (two counts), robbery in the first degree and robbery in the second degree (two counts).

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts each of burglary in the first degree (Penal Law § 140.30 [2], [4]) and robbery in the second degree (§ 160.10 [1], [2] [a]) and one count of robbery in the first degree (§ 160.15 [4]). By failing to object to County Court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the ruling constitutes an abuse of discretion (see People v Caswell, 49 AD3d 1257 [2008], lv denied 11 NY3d 735 [2008]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary to defendant's further contention, the court properly ordered the sentence imposed for robbery in the first degree to run consecutively to the sentences imposed on the two counts of burglary in the first degree (see People v Yong Yun Lee, 92 NY2d 987, 989 [1998]; People v Sanchez, 31 AD3d 1218 [2006], lv denied 7 NY3d 870 [2006]). The sentence is not unduly harsh or severe. Present—Scudder, P.J., Martoche, Fahey, Green and Gorski, JJ.