Opinion
2012-11310, Ind. No. 296/11.
04-27-2016
The PEOPLE, etc., respondent, v. William JONES, appellant.
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart and Anne Grady of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.
Opinion Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini, J.), rendered December 12, 2012, 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.
To the extent the defendant contends that the People did not present legally sufficient evidence that the gun he was charged with having possessed was operable, viewing the evidence in the light most favorable to the prosecution (see People
v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that the evidence was legally sufficient to establish the defendant's guilt of criminal possession of a weapon in the second degree beyond a reasonable doubt (see Penal Law § 265.03[3] ; People v. Samba, 97 A.D.3d 411, 414–415, 948 N.Y.S.2d 58 ; People v. Edwards, 81 A.D.3d 848, 848–849, 916 N.Y.S.2d 237 ; People v. Moore, 303 A.D.2d 691, 692, 757 N.Y.S.2d 78 ; People v. D'Amico, 261 A.D.2d 635, 691 N.Y.S.2d 778 ; People v. Solis, 214 A.D.2d 689, 689, 625 N.Y.S.2d 591 ; People v. Temple, 165 A.D.2d 748, 749, 564 N.Y.S.2d 271 ). Furthermore, 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, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the factfinder'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 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 ). The fact that one of the People's witnesses had an unsavory background and testified pursuant to a cooperation agreement did not render his testimony incredible (see People v. Bernard, 100 A.D.3d 916, 916–917, 954 N.Y.S.2d 209 ; People v. Lucien Chin, 69 A.D.3d 752, 752–753, 897 N.Y.S.2d 106 ; People v. Manley, 60 A.D.3d 870, 870, 875 N.Y.S.2d 542 ).
The defendant's contentions that the Supreme Court erred in giving the jury a “diluted” charge on assessing the credibility of the witness who testified pursuant to a cooperation agreement and in failing to provide a circumstantial evidence charge are unpreserved for appellate review (see CPL 470.05[2] ; People v. Joseph, 114 A.D.3d 878, 879, 980 N.Y.S.2d 805 ; People v. Gonzalez, 70 A.D3.d 855, 855, 893 N.Y.S.2d 843 ; People v. Irizarry, 298 A.D.2d 600, 748 N.Y.S.2d 689 ). In any event, both contentions are without merit. The court instructed the jury that it “may consider whether a witness hopes for or expects to receive a particular benefit for testifying. If so, you may consider whether, and to what extent, that benefit affected the truthfulness of the witness's testimony.” This charge was consistent with the current pattern Criminal Jury Instructions (see CJI2d [N.Y.] Credibility of Witnesses—Benefit) and “adequately conveyed to the jury the appropriate standard by which to evaluate the testimony of [such a] witness” (People v. Kettreis, 19 A.D.3d 706, 707, 798 N.Y.S.2d 92 ; see People v. Jackson, 74 N.Y.2d 787, 790, 545 N.Y.S.2d 95, 543 N.E.2d 738 ). Further, since the People's case against the defendant consisted of both direct and circumstantial evidence, he was not entitled to a circumstantial evidence charge (see People v. Santiago, 22 N.Y.3d 990, 991–992, 980 N.Y.S.2d 889, 3 N.E.3d 1137 ; People v. Roldan, 88 N.Y.2d 826, 827, 643 N.Y.S.2d 960, 666 N.E.2d 553 ; People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014 ; People v. Barnes, 50 N.Y.2d 375, 380, 429 N.Y.S.2d 178, 406 N.E.2d 1071 ; People v. Von Werne, 41 N.Y.2d 584, 590, 394 N.Y.S.2d 183, 362 N.E.2d 982 ; People v. Joseph, 114 A.D.3d at 879, 980 N.Y.S.2d 805 ; People v. Clark, 100 A.D.3d 1013, 1014, 954 N.Y.S.2d 224 ; People v. Garson, 69 A.D.3d 650, 651, 892 N.Y.S.2d 511 ).
Since the defendant's contentions with respect to the alleged errors in charging the jury are without merit, the failure of trial counsel to request a circumstantial evidence charge, or object to the charge given, cannot be said to have constituted ineffective assistance of counsel (see People v. Fabers, 133 A.D.3d 616, 617, 20 N.Y.S.3d 89 ; People v. Torres, 108 A.D.3d 474, 475, 969 N.Y.S.2d 462 ; People v. Geddes, 49 A.D.3d 1255, 1256–1257, 856 N.Y.S.2d 336 ; People v. Walker, 274 A.D.2d 600, 602, 711 N.Y.S.2d 535 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).