Opinion
No. KA 05-00089.
December 22, 2006.
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered December 17, 2004. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree and attempted burglary in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MARY GOOD OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Present — Hurlbutt, A.P.J., Gorski, Smith and Centra, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by directing that the terms of imprisonment shall run concurrently and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25) and attempted burglary in the second degree (§§ 110.00, 140.25 [2]). Contrary to the contention of defendant, he was not denied effective assistance of counsel. Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received meaningful representation ( see generally People v Baldi, 54 NY2d 137, 147). Contrary to defendant's further contention, Supreme Court followed the procedures set forth in Penal Law § 70.10 and CPL 400.20 before sentencing defendant as a persistent felony offender. We conclude, however, that the imposition of consecutive terms of imprisonment renders the sentence unduly harsh and severe ( see CPL 470.15 [b]). Therefore, as a matter of discretion in the interest of justice, we modify the judgment by directing that the terms of imprisonment shall run concurrently.