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The People of the State of New York v. Joseph Barbieri

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


July 18, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOSEPH BARBIERI, APPELLANT.

Appeal from judgments of the Justice Court of the Town of East Hampton, Suffolk County (Catherine A. Cahill, J.), rendered October 7, 2010.

People v Barbieri (Joseph)

Appellate Term, Second Department

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

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 18, 2012

PRESENT: TANENBAUM, J.P., NICOLAI and MOLIA, JJ

The judgments convicted defendant, after a non-jury trial, of forcible touching and unlawful imprisonment in the second degree, respectively.

ORDERED that the judgments of conviction are modified, on the law, by vacating the sentences imposed; as so modified, the judgments of conviction are affirmed and the matter is remitted to the Justice Court for resentencing.

Defendant was charged with the forcible touching (Penal Law § 130.52) and unlawful imprisonment in the second degree (Penal Law § 135.05) of a 31-year-old co-worker based upon allegations that he had forcibly touched her by inserting his finger into her vagina, and had restrained her. After a non-jury trial, defendant was found guilty of these charges. Without any specific reference to either conviction, the Justice Court, as reflected in the sentencing minutes of October 7, 2010, pronounced a sentence of a "period of probation not to exceed three years." However, the record contains a written order, dated October 7, 2010, which indicates that defendant had been sentenced to six years' probation on the conviction of forcible touching and three years' probation on the conviction of unlawful imprisonment in the second degree, the terms of which included numerous conditions prohibiting defendant from having contact with minors.

On appeal, defendant contends that (1) the evidence was legally insufficient to establish his guilt of forcible touching and unlawful imprisonment in the second degree, (2) the verdicts were against the weight of the evidence, (3) the sentences were unduly harsh and excessive with regard to the period of probation imposed and the conditions of probation prohibiting him from having contact with minors, and (4) the trial court was biased and improperly dismissed the testimony of two male witnesses who had testified on his behalf.

Defendant's contention that the evidence was legally insufficient to support the convictions is not preserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that the evidence was legally sufficient to establish defendant's guilt of the charged offenses beyond a reasonable doubt.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we accord great deference to the factfinder's opportunity at trial to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888 [2006]). The Justice Court accepted the version of the events proffered by the People's witnesses, and we see no basis in the record to disturb the verdicts.

A defendant's right to hear the pronouncement of sentence on each conviction in open court is guaranteed by statute (see CPL 380.20; People v Lingle, 16 NY3d 621, 629 [2011]; People v Sparber, 10 NY3d 457 [2008]). A review of the sentencing minutes reveals that the Justice Court merely indicated that the term of probation would not exceed three years; it did not pronounce a sentence for each conviction. Although this issue has not been raised, we cannot allow an illegal sentence to stand (see People v Williams, 14 NY3d 198 [2010] [court has inherent ability to correct an illegal sentence]; People v Warner, 69 AD3d 1052, 1054 [2010]), especially here, where there is a conflict between the sentence imposed as appears in the sentencing minutes and the sentence imposed as reflected in the written order. Therefore, the sentence and the court's written order and conditions of probation are vacated and the matter is remitted to the Justice Court for resentencing (see People v Warner, 69 AD3d 1052 [2010]).

The decision and order of this court entered herein on December 27, 2011 (34 Misc 3d 138[A], 2011 NY Slip Op 52417[U]) are hereby recalled and vacated (see motion decided simultaneously herewith).

Nicolai and Molia, JJ., concur.

Tanenbaum, J.P., taking no part. Decision Date: July 18, 2012

20120718

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