NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
June 9, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ZAVIA JOHNSON, DEFENDANT-APPELLANT.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered February 1, 2007, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and criminal mischief in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 21/2 to 5 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Sweeny, DeGrasse, Freedman, Abdus-Salaam, JJ.
Defendant's challenge to the sufficiency of the evidence supporting his conviction of third-degree weapon possession is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that there was legally sufficient evidence to establish defendant's intent to use a baseball bat unlawfully against the victim, not merely against the victim's property, and that the bat constituted a dangerous instrument within the meaning of Penal Law § 10.00(13). The jury could have reasonably inferred that defendant menaced the victim by conveying an implied threat to strike him with the bat, and that defendant also used the bat in a manner that was readily capable of causing serious physical injury even if intended to damage the victim's car. We further find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342 ).
The court's Sandoval ruling, which placed appropriate limits on elicitation of defendant's extensive criminal record, balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 ; People v Walker, 83 NY2d 455, 458-459 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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