Opinion
2011-11-1
The PEOPLE, etc., respondent,v.Pheod KHAN, appellant.
Jack G. Goldberg, New York, N.Y. (Donald Yannella of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, and Adam M. Koelsch of counsel), for respondent.
Jack G. Goldberg, New York, N.Y. (Donald Yannella of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, and Adam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Walsh, J.), rendered February 18, 2010, 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 of criminal possession of a weapon in the second degree is unpreserved for appellate review ( see CPL 470.05[2]; 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, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a weapon in the second degree beyond a reasonable doubt. 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 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. denied 542 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).
In addition, the defendant's contention that the Supreme Court erred in failing to instruct the jury on the defense of justification with respect to the charge on criminal possession of a weapon in the second degree is unpreserved for appellate review ( see People v. Albritton, 69 A.D.3d 866, 891 N.Y.S.2d 914; People v. Smith, 54 A.D.3d 421, 422, 863 N.Y.S.2d 242; People v. Herring, 282 A.D.2d 546, 722 N.Y.S.2d 887) and, in any event, is without merit ( see People v. Pons, 68 N.Y.2d 264, 267, 508 N.Y.S.2d 403, 501 N.E.2d 11; People v. Jenkins, 81 A.D.3d 662, 663, 918 N.Y.S.2d 114).
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in refusing to disqualify a sworn juror who expressed apprehension after one member of a group of five or six individuals, who were seen inside the courtroom, had approached the juror to talk. Upon questioning, the juror unequivocally stated that she could reach a fair and impartial decision. The Supreme Court properly determined that the juror was not grossly unqualified to serve as a member of the jury ( see CPL 270.35; People v. Parnell, 60 A.D.3d 1087, 877 N.Y.S.2d 131; People v. Guzman, 257 A.D.2d 630, 685 N.Y.S.2d 87; People v. Attanasio, 191 A.D.2d 447, 448, 594 N.Y.S.2d 299).
Furthermore, the defendant's contention that the Supreme Court improperly considered charges of which he was acquitted as a basis for imposing sentence is without merit ( see People v. Morgan, 27 A.D.3d 579, 580, 810 N.Y.S.2d 369; People v. Robinson, 250 A.D.2d 629, 672 N.Y.S.2d 751).
The defendant's contention that his sentence violated the Eighth Amendment prohibition against cruel and unusual punishment is without merit, as there are no exceptional circumstances present here warranting modification of the challenged sentence, which was within the permissible statutory limit ( see People v. Jones, 39 N.Y.2d 694, 695, 385 N.Y.S.2d 525, 350 N.E.2d 913; People v. Cruz, 54 A.D.3d 962, 864 N.Y.S.2d 137). Moreover, the sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.