Opinion
1725
October 3, 2002.
Judgment, Supreme Court, New York County (John Bradley, J.), rendered November 6, 2000, convicting defendant, after a jury trial, of three counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to consecutive terms of 20 years to life, unanimously affirmed.
SUSAN GLINER, for respondent.
MICHAEL J.Z. MANNHEIMER PRO SE, for defendant-appellant.
Before: Williams, P.J., Tom, Mazzarelli, Sullivan, Gonzalez, JJ.
The court properly exercised its discretion in admitting testimony that defendant confessed to a considerably larger number of robberies than the number of robberies upon which he was brought to trial. Given the issues raised at trial, this testimony was necessary to establish the context of defendant's confessions to the charged crimes, particularly since it was not entirely clear which of the many similar robberies to which defendant confessed corresponded to the robberies for which he was tried. Any prejudicial effect was minimized by the court's instructions, which the jury is presumed to have followed (see People v. Davis, 58 N.Y.2d 1102). Defendant's related contentions concerning the court's charge and the People's summation are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
Defendant was properly sentenced as a persistent violent felony offender. On defendant's prior appeal ( 250 A.D.2d 398), this Court reversed and remanded for a new trial. At defendant's sentencing following retrial, the court relied upon the persistent violent felony adjudication made after the first trial, which adjudication was not at issue on the prior appeal. We reject defendant's argument that the reversal of his first conviction entitled him to a new persistent violent felony proceeding. In the first place, a predicate felony finding is "binding upon [the] defendant in any future proceeding in which the issue may arise" (CPL 400.21). Furthermore, a multiple felony offender proceeding is analogous to a suppression hearing, which need not be repeated or reopened following a remand for a new trial "absent newly discovered evidence or a directive in the order remitting the case for a new trial" (People v. Hults, 150 A.D.2d 726, 727, affd 76 N.Y.2d 190;see also People v. Nieves, 67 N.Y.2d 125, 137, n 5; People v. Miller, 65 N.Y.2d 502, 511-512, cert denied 474 U.S. 951; cf. People v. Evans, 94 N.Y.2d 499, 505 [factual, non-discretionary determinations generally binding on successor justices under "law of the case" doctrine]).
The sentence imposed was not vindictive (People v. Young, 94 N.Y.2d 171).
On defendant's prior appeal we determined that the contention now raised in his pro se supplemental brief was both unpreserved and without merit, and there is no reason to depart from those determinations.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.