Skip Laisure, New York, NY (Melissa S. Horlick of counsel),
for appellant, and appellant pro se.
Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove,
Rhea A. Grob, Terrence F. Heller, and Joyce Slevin of
counsel), for respondent.
WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS COLLEEN D. DUFFY
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Vincent M. Del Giudice, J.), rendered June 25, 2013,
convicting him of criminal possession of a weapon in the
second degree, upon a jury verdict, and sentencing him, as a
persistent felony offender, to an indeterminate term of
imprisonment of 25 years to life, and a fine in the sum of
$5, 000. The appeal brings up for review the denial (Guy J.
Mangano, Jr., J.), after a hearing, of that branch of the
defendant's omnibus motion which was to suppress
that the judgment is modified, as a matter of discretion in
the interest of justice, by vacating so much of the sentence
as imposed a fine in the sum of $5, 000; as so modified, the
judgment is affirmed.
defendant's contention that certain identification
testimony should have been suppressed because the process of
assembling and presenting a particular photo array to the
complainant was unduly suggestive is unpreserved for
appellate review (see CPL 470.05; People v
Moshier, 110 A.D.3d 832, 832). In any event, his
contention is without merit (see People v Moshier,
110 A.D.3d at 832).
defendant's contention that the trial court erred in
excusing, sua sponte, two prospective jurors is partially
unpreserved for appellate review, as he objected to the
excusal of only one prospective juror (see CPL
470.05; People v Cunningham, 119 A.D.3d 601, 601;
People v Toussaint, 40 A.D.3d 1017, 1017-1018). In
any event, the defendant's contention is without merit
since both prospective jurors indicated their unwillingness
or inability to follow the trial court's instructions.
The trial court, therefore, providently exercised its
discretion in excusing them sua sponte (see People v
Cunningham, 119 A.D.3d at 602; People v
Anderson, 48 A.D.3d 825, 826; People v James,
47 A.D.3d 947, 948).
defendant's contention that the People failed to adduce
legally sufficient evidence to prove his guilt beyond a
reasonable doubt is unpreserved for appellate review
(see CPL 470.05; People v Hawkins, 11
N.Y.3d 484, 492). 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 it was legally
sufficient to establish the defendant's guilt of criminal
possession of a weapon in the second degree under Penal Law
§ 265.03(3) (see People v Rivera, 152 A.D.3d
625; People v Pringle, 136 A.D.3d 1061, 1061-1062).
Moreover, upon our independent review pursuant to CPL
470.15(5), 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).
defendant's contention that the use of certain
identification testimony during trial constituted improper
bolstering is unpreserved for appellate review (see
CPL 470.05; People v Bonilla, 151 A.D.3d 735)
and, in any event, without merit. Moreover, the complainant
was sufficiently familiar with the defendant that her
identification of him in the photo array was merely
confirmatory (see People v Rodriguez, 79 N.Y.2d 445,
452; People v Gissendanner, 48 N.Y.2d 543, 552;
People v Shepard, 138 A.D.3d 895, 896; People v
Avent, 29 A.D.3d 601, 601; People v Lima, 2
A.D.3d 754, 754).
defendant's contention that certain comments made by the
prosecutor in summation were improper is unpreserved for
appellate review (see CPL 470.05), as the
defendant failed to object to those comments, request
curative instructions, or move for a mistrial (see People
v Brown, 139 A.D.3d 964, 966; People v Valerio,
70 A.D.3d 869; People v Boyce, 54 A.D.3d 1052,
1052). In any event, his contention is without merit, as the
comments were a fair comment on the evidence (see People
v Brown, 139 A.D.3d at 966; People v Green, 90
A.D.3d 948, 948; People v German, 45 A.D.3d 861,
862), and responsive to arguments raised by the defense in
summation (see People v Lugg, 124 A.D.3d 679, 680;
People v Green, 90 A.D.3d at 948; People v
German, 45 A.D.3d at 862; People v Almonte, 23
A.D.3d 392, 394).
trial court properly declined to give a missing witness
charge, as the defendant failed to show that any uncalled
witnesses were available and under the control of the People,
had material knowledge, and would be able to provide
noncumulative testimony (see People v Edwards, 14
N.Y.3d 733, 735; People v Chestnut, 149 A.D.3d 772,
773; People v Barber, 133 A.D.3d 868, 870;
People v Roseboro, 127 A.D.3d 998, 999). In any
event, defense counsel was permitted to comment during
summation on the People's failure to call the witnesses
in question (see People v Williams, 5 N.Y.3d 732,
734; People v Barber, 133 A.D.3d at 870).
trial court properly denied the defendant's request to
charge the jury on criminal possession of a weapon in the
fourth degree, since there was no reasonable view of the
evidence that would support a finding that the defendant
committed the crime of criminal possession of a weapon in the
fourth degree, but not criminal possession of a weapon in the
second degree (see People v Franqueira, 143 A.D.3d
1164, 1170; People v Lewis, 96 A.D.3d 878, 879;
People v Melendez, 71 A.D.3d 1166, 1167).
defendant's contention that his adjudication as a
persistent felony offender violated his right to a jury trial
pursuant to Apprendi v New Jersey (530 U.S. 466) is
unpreserved for appellate review since it was not raised at
the sentencing hearing (see CPL 470.05;
People v Rosen, 96 N.Y.2d 329, 335; People v
Washington, 26 A.D.3d 400, 400). In any event, his
contention is without merit (see People v Bell, 15
N.Y.3d 935, 936; People v Quinones, 12 N.Y.3d 116;
People v Rivera, 5 N.Y.3d 61, 67; People v
Rosen, 96 N.Y.2d at 335). The defendant's argument
that New York's persistent felony offender sentencing
scheme was improperly applied to him is also without merit.
The People proved beyond a reasonable doubt that the
defendant is a persistent felony offender within the meaning
of Penal Law § 70.10(1), and the sentencing court's
conclusion that the nature of the defendant's criminal
conduct in the instant matter, his criminal record, and his
character warranted extended incarceration and lifetime
supervision is supported by the record and was not an
improvident exercise of discretion (see Penal Law
§ 70.10; CPL 400.20; People v Neree, 142 A.D.3d
1026, 1027; People v Dixon, 107 A.D.3d 735, 736).
Nevertheless, the sentence imposed was excessive to the
extent indicated herein.
defendant's claim of ineffective assistance of counsel is
based, in part, on matter appearing on the record and, in
part, on matter outside the record and, thus, constitutes a
mixed claim of ineffective assistance (see People v
Maxwell, 89 A.D.3d 1108, 1109). Since the
defendant's claim of ineffective assistance of counsel
cannot be resolved without reference to matter outside the
record, a CPL 440.10 proceeding is the appropriate forum for
reviewing the defendant's claim in its ...