People v. Colon — 133 A.D.3d 532

Majority

p. 532

The People of the State of New York, Respondent, v Paul Colon, Also Known as Paul J. Colon, Appellant.

[19 NYS3d 424]

Judgment, Supreme Court, Bronx County (William L. McGuire, J.), rendered May 1, 2012, convicting defendant, after a jury trial, of murder in the first and second degrees, robbery in the first degree, burglary in the first degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 40 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that all sentences be served concurrently, resulting in a new an aggregate term of 25 years to life, and otherwise affirmed.

p. 533

The court properly granted the People’s challenge for cause to a prospective juror, a decision that is entitled to considerable deference (see People v Panchon, 93 AD3d 446 , 447 [1st Dept 2012], lv denied 19 NY3d 866 [2012]). The record supports the court’s ruling that the prospective juror’s ability to communicate in English was not sufficient for jury service. The court was able to rely on its own observations of the panelist’s demeanor and difficulty in giving responsive answers (see People v Harris, 63 AD3d 480 [1st Dept 2009], lv denied 13 NY3d 796 [2009]).

Defendant’s claim that burglary was improperly used as an aggravating factor to elevate murder in the second degree to first-degree murder is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find that the claim is without merit.

Defendant’s public trial claim is unpreserved (see People v Alvarez, 20 NY3d 75 , 81 [2012], cert denied 569 US —, 133 S Ct 2004 [2013]), and we decline to review it in the interest of justice.

We find the sentence excessive to the extent indicated. Concur — Gonzalez, P.J., Tom, Mazzarelli and ManzanetDaniels, JJ.

Cases cited

People v. Alvarez 20 NY3d 75 N.Y. 2012-10-30 at 81 p. 533