Opinion
2012-10772. Ind. No. 5222/10.
08-09-2017
The PEOPLE, etc., respondent, v. Juan BURKETTE, also known as "King Almighty," appellant.
Mark Diamond, New York, NY, for appellant. Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
Mark Diamond, New York, NY, for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered November 26, 2012, convicting him of arson in the first degree, criminal possession of a weapon in the first degree, and conspiracy in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the conviction of criminal possession of a weapon in the first degree to criminal possession of a weapon in the third degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
The defendant and various codefendants were charged with crimes in connection with a gang-related arson carried out with the use of two Molotov cocktails.
The defendant's challenge to the legal sufficiency of the evidence regarding the corroboration of accomplice testimony is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Echols, 144 A.D.3d 702, 702, 40 N.Y.S.3d 186 ). In any event, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that the accomplice testimony was sufficiently corroborated (see CPL 60.22[1] ; People v. Reome, 15 N.Y.3d 188, 194, 906 N.Y.S.2d 788, 933 N.E.2d 186 ; People v. Sudhan, 83 A.D.3d 874, 874, 920 N.Y.S.2d 678 ), and was legally sufficient to establish the defendant's guilt beyond a reasonable doubt of arson in the first degree and conspiracy in the second degree (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
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 at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), 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, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the counts of arson in the first degree and conspiracy in the second degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Pelosi, 128 A.D.3d 733, 734, 6 N.Y.S.3d 493 ).
However, the evidence was not legally sufficient to establish the defendant's guilt of criminal possession of a weapon in the first degree because it did not demonstrate that the Molotov cocktails used in this case constituted an "explosive substance" within the meaning of Penal Law § 265.04(1) (see People v. McCrawford, 47 A.D.2d 318, 320–321, 366 N.Y.S.2d 424 ; People v. Sullivan, 39 A.D.2d 631, 331 N.Y.S.2d 298 ; People v. Getman, 188 Misc.2d 809, 815, 729 N.Y.S.2d 858 [Chemung County Ct.] ; People v. Fernandez, 150 Misc.2d 560, 562–564, 569 N.Y.S.2d 569 [Sup.Ct., N.Y. County] ). Although the defendant's legal sufficiency claim as to this count is unpreserved for appellate review, we reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c] ; People v. Rose, 134 A.D.3d 1135, 1136, 22 N.Y.S.3d 534 ). Nevertheless, the evidence was legally sufficient to establish the defendant's guilt of the lesser-included offense of criminal possession of a weapon in the third degree (see Penal Law § 265.02 [2 ] ). Accordingly, we reduce the conviction of criminal possession of a weapon in the first degree to criminal possession of a weapon in the third degree, vacate the sentence imposed thereon, and remit the matter to the Supreme Court, Kings County, for the imposition of an authorized sentence for that offense (see People v. Philips, 120 A.D.3d 1266, 1267–1268, 992 N.Y.S.2d 104 ). We agree with the defendant that under the circumstances here, it was improper to admit into evidence a summary chart depicting the gang hierarchy and membership of the gang, which identified the gang's members by name and their associated arrest photos (see People v. Shields, 100 A.D.3d 549, 550–551, 954 N.Y.S.2d 97 ; People v. Thomas, 226 A.D.2d 1071, 1071, 642 N.Y.S.2d 749 ). Nevertheless, the error was harmless, as the proof of the defendant's guilt of arson in the first degree and conspiracy in the second degree was overwhelming, and there is no significant probability that, but for the error, the verdict would have been less adverse (see People v. Inoa, 25 N.Y.3d 466, 472, 13 N.Y.S.3d 329, 34 N.E.3d 839 ; People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Phem, 73 A.D.3d 1088, 900 N.Y.S.2d 883 ; People v. Martin, 54 A.D.3d 776, 777, 863 N.Y.S.2d 491 ; People v. Rivera, 192 A.D.2d 561, 562, 596 N.Y.S.2d 108 ).
The defendant's contention that certain of the prosecutor's remarks on summation constituted reversible error because the prosecutor, among other things, usurped the jury's role as factfinder and engaged in impermissible bolstering of the People's witnesses is unpreserved for appellate review, since, although the defendant objected to most of the comments, he failed to raise any objections to the curative instructions given by the Supreme Court in response to his objections or to seek a mistrial (see People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 ; People v. Thomas, 143 A.D.3d 1006, 1007, 40 N.Y.S.3d 462 ; People v. Brown, 139 A.D.3d 964, 966, 31 N.Y.S.3d 587 ). In any event, the prosecutor's comments were either fair comment on the evidence presented, fair response to the defendant's summation, or permissible rhetorical comment (see People v. Wallace, 149 A.D.3d 878, 51 N.Y.S.3d 606 ; People v. Fews, 148 A.D.3d 1180, 50 N.Y.S.3d 523 ; People v. Owens, 129 A.D.3d 995, 997, 11 N.Y.S.3d 641 ).
The defendant's remaining contention is partially unpreserved for appellate review and, in any event, without merit.