Opinion
952
May 2, 2002.
Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered June 2, 1999, convicting defendant, after a jury trial, of forgery in the second degree, criminal possession of a forged instrument in the second degree and criminal possession of stolen property, and sentencing him, as a persistent felony offender, to concurrent terms of 15 years to life, 15 years to life and 1 year, unanimously modified, on the law, to the extent of vacating the conviction for criminal possession of a forged instrument in the second degree and dismissing that count of the indictment, and otherwise affirmed.
SUSAN AXELROD, for respondent.
MARIE A. CORLISS, for defendant-appellant.
Before: Andrias, J.P., Sullivan, Wallach, Rubin, Gonzalez, JJ.
As the People commendably concede, dismissal of defendant's conviction for possession of a forged instrument is required because defendant was also convicted of forgery based on the same instrument (Penal Law § 170.35).
Defendant's challenges to the sufficiency of the evidence establishing that New York County had geographical jurisdiction over the forgery charge, and to the court's instructions to the jury on that subject, are unpreserved (People v. Gray, 86 N.Y.2d 10), and we decline to review them in the interest of justice. There is no merit to any of the theories under which defendant argues that these issues should be deemed preserved (see, CPL 470.05). Were we to review these claims, we would find that venue in New York County was proper (see, People v. Cullen, 50 N.Y.2d 168).
Defendant was properly adjudicated a persistent felony offender. Defendant failed to establish that his 1982 felony conviction was constitutionally infirm. The pertinent record establishes, at most, that the 1982 trial court instructed a court officer to communicate with the deliberating jury concerning a ministerial matter (see, People v. Bonaparte, 78 N.Y.2d 26). Defendant's claim that the court failed to follow the procedures set forth in 400.20 prior to adjudicating him a persistent felony offender is unpreserved (People v. Proctor, 79 N.Y.2d 992, 994), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court conducted a proper persistent felony offender hearing prior to imposing sentence.
Motion seeking leave to file a pro se supplemental brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.