Opinion
1173 KA 17–00044
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Sammie GRINER, III, Defendant–Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03[1][b] ; [3] ) and one count of assault in the second degree (§ 120.05[2] ). Upon our independent review of the evidence and viewing such evidence in light of the elements of the crimes as charged to the jury (see People v. Cruz, 171 A.D.3d 1509, 1510, 97 N.Y.S.3d 561 [4th Dept. 2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 746, 133 N.E.3d 452 [2019] ; see generally People v. Sanchez, 32 N.Y.3d 1021, 1023, 87 N.Y.S.3d 135, 112 N.E.3d 312 [2018] ; People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence.
Contrary to defendant's contention, Supreme Court properly overruled his hearsay objection to the admissibility of certain testimony regarding canine tracking. The jury was "pointedly instructed by the court ... that the testimony [was] not being admitted for [its] truth, and the jury is presumed to have followed such admonition" ( People v. Bryant, 39 A.D.3d 768, 768, 834 N.Y.S.2d 305 [2d Dept. 2007], lv denied 9 N.Y.3d 990, 848 N.Y.S.2d 607, 878 N.E.2d 1023 [2007] [internal quotation marks omitted]; see People v. Davis, 58 N.Y.2d 1102, 1103–1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 [1983] ). Thus, the challenged testimony was "not hearsay as it was not admitted for its truth" ( People v. Cromwell, 71 A.D.3d 414, 415, 897 N.Y.S.2d 35 [1st Dept. 2010], lv denied 15 N.Y.3d 803, 908 N.Y.S.2d 163, 934 N.E.2d 897 [2010] ). Defendant failed to preserve his related contention that he was denied his right of confrontation with respect to the challenged testimony, and we decline to exercise our power to review that argument as a matter of discretion in the interest of justice (see People v. Tirado, 175 A.D.3d 970, 971, 105 N.Y.S.3d 338 [4th Dept. 2019], lv denied 34 N.Y.3d 984, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Oct. 30, 2019] ). The sentence is not unduly harsh or severe, and the record refutes defendant's assertion that the court penalized him for exercising his right to trial. Contrary to defendant's further contention, resentencing is not required inasmuch as "sentences may run consecutively to each other even though each of those sentences is required to run concurrently with the same third sentence" ( People v. Rodriguez, 112 A.D.3d 488, 489, 976 N.Y.S.2d 96 [1st Dept. 2013], affd 25 N.Y.3d 238, 10 N.Y.S.3d 495, 32 N.E.3d 930 [2015] ). We cannot review defendant's contention regarding the presentence report because it is based on matters outside the record on appeal (see generally People v. Powell, 79 A.D.3d 1791, 1793, 913 N.Y.S.2d 468 [4th Dept. 2010], lv denied 17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102 [2011] ).
We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.