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People v. Allen

Supreme Court of New York, Second Department

June 12, 2013

The People of the State of New York, respondent,
v.
Hassan Allen, appellant. Ind. No. 616/10

Lynn W. L. Fahey, New York, N.Y. (Jenin Younes of counsel), or appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Emil Bricker of counsel), for respondent.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, ROBERT J. MILLER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered January 26, 2012, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the evidence was legally insufficient to establish that he possessed the gun recovered by the police is unpreserved for appellate review (see CPL 470.05[2]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that the evidence was legally sufficient to establish that the defendant possessed the gun (see People v Almonte, 23 A.D.3d 392). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410, cert denied 542 U.S. 946; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633). Contrary to the defendant's contentions, the testimony offered by the People's witnesses was not so improbable or unreliable that it could not be credited (see People v Fields, 28 A.D.3d 789, 790). Indeed, any discrepancies or inconsistencies in the testimony were matters to be considered by the jury in assessing the credibility of the witnesses (see People v Almonte, 23 A.D.3d at 393).

The defendant also failed to preserve for appellate review his contention, based on CPL 200.60(3), that the Supreme Court failed to follow the proper procedures for use of a prior conviction to elevate the level of a charged crime (see CPL 470.05[2]; People v Ward, 57 A.D.3d 582, 583; People v Santiago, 244 A.D.2d 263). In any event, this contention is without merit. Since the defendant had previously stipulated to the correctness of his prior conviction, as enumerated in a special information filed by the People, and since defense counsel successfully moved, at the time of the Sandoval hearing (see People v Sandoval, 34 N.Y.2d 371), to preclude the People from making reference to that prior conviction, there was no need for the court to offer the defendant another opportunity to admit that prior conviction (see People v Ward, 57 A.D.3d at 583; People v Santiago, 244 A.D.2d at 263; People v Reid, 232 A.D.2d 173; People v Cloyce, 220 A.D.2d 329).

The defendant's remaining contention is without merit.

BALKIN, J.P., HALL, LOTT and MILLER, JJ., concur.


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