Opinion
2012-12-26
The PEOPLE, etc., respondent, v. Jimmy DARGAN, appellant.
Lynn W.L. Fahey, New York, N.Y. (Katherine A. Levine of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Julie C. Ruggieri on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Katherine A. Levine of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel; Julie C. Ruggieri on the brief), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garnett, J.), rendered November 24, 2009, convicting him of criminal possession of a weapon in the second 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 support his conviction is unpreserved for appellate review ( seeCPL 470.05; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 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,cert. denied542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;People v. Bleakley, 69 N.Y.2d 490, 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 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).
Contrary to the defendant's contention, certain communications made by court officers to jurors were purely ministerial in nature, and did not improperly convey legal instructions to the jurors ( see People v. Nacey, 78 N.Y.2d 990, 991, 575 N.Y.S.2d 265, 580 N.E.2d 751;People v. Bonaparte, 78 N.Y.2d 26, 30, 571 N.Y.S.2d 421, 574 N.E.2d 1027;People v. Lebron, 184 A.D.2d 784, 788, 585 N.Y.S.2d 498;People v. Belgrave, 181 A.D.2d 738, 580 N.Y.S.2d 481;People v. Hodges, 173 A.D.2d 644, 570 N.Y.S.2d 225;cf. People v. Cassell, 62 A.D.3d 1021, 1021–1022, 880 N.Y.S.2d 303;People v. Lara, 199 A.D.2d 419, 419–420, 605 N.Y.S.2d 339), or otherwise violate CPL 310.10 ( see People v. Manzo, 233 A.D.2d 529, 530, 650 N.Y.S.2d 763). In addition, since the court officers' communications related to administrative matters so as to fall within their supervisory role, the defendant's absence during such communications did not constitute a violation of his right to be present ( see People v. Manzo, 233 A.D.2d at 530, 650 N.Y.S.2d 763;People v. Buxton, 192 A.D.2d 289, 293, 601 N.Y.S.2d 132).
The Supreme Court providently exercised its discretion in denying the defendant's request to make additional inquiries of a juror who, inter alia, quarreled with another juror during the course of deliberations ( see People v. Maragh, 94 N.Y.2d 569, 573–574, 708 N.Y.S.2d 44, 729 N.E.2d 701;People v. Buford, 69 N.Y.2d 290, 297–299, 514 N.Y.S.2d 191, 506 N.E.2d 901;cf. People v. Wright, 35 A.D.3d 172, 826 N.Y.S.2d 31). The Supreme Court conducted a sufficiently probative inquiry of the juror in question, and ascertained that the juror could continue to deliberate in a fair and impartial manner ( see People v. Maragh, 94 N.Y.2d at 573–574, 708 N.Y.S.2d 44, 729 N.E.2d 701;People v. Buford, 69 N.Y.2d at 297–299, 514 N.Y.S.2d 191, 506 N.E.2d 901).
The defendant argues that Supreme Court should not have classified his prior conviction as a violent felony offense because the accusatory instrument used in that proceeding was a superior court information—and not an indictment—and, as such, his plea of guilty to the lesser grade offense cannot qualify as a violent felony. We disagree. A “superior court information has the same force and effect as an indictment and all procedures and provisions of law applicable to indictments are also applicable to superior court informations, except otherwise expressly provided” (CPL 200.15).
Accordingly, contrary to the defendant's contention, since he had previously pleaded guilty to attempted criminal possession of a weapon in the third degree under a superior court information charging the greater offense of criminal possession of a weapon in the third degree, he was properly designated a second violent felony offender ( seePenal Law § 70.02[1][d]; CPL 220.20[1]; 200.15; People v. Cunningham, 86 A.D.3d 859, 860, 927 N.Y.S.2d 485;People v. Henry, 52 A.D.3d 841, 842–844, 860 N.Y.S.2d 619).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).