Opinion
January 12, 2010.
Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.), rendered December 6, 2006, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Michael A. Fiechter, Bellmore, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio and Cristin N. Connell of counsel), for respondent.
FRED T. SANTUCCI, J.P., RUTH C. BALKIN, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.
ORDERED that the judgment is affirmed.
The defendant's contention that the trial court erred in failing to give proper limiting instructions concerning the jury's use of the testimony regarding his prior bad acts is unpreserved for appellate review ( see CPL 470.05; People v. Giuca, 58 A.D.3d 750, 751, 871 N.Y.S.2d 709; People v. Green, 56 A.D.3d 490, 490-491, 868 N.Y.S.2d 73; People v. Hawker, 215 A.D.2d 499, 500, 626 N.Y.S.2d 524). In any event, the court gave an appropriate limiting instruction ( see People v. Norman 40 A.D.3d 1128, 837 N.Y.S.2d 694; People v. Satiro, 132 A.D.2d 717, 717-718, 518 N.Y.S.2d 194, affd. 72 N.Y.2d 821, 530 N.Y.S.2d 539, 526 N.E.2d 30).
Contrary to the defendant's contention, since criminal possession of a weapon in the third degree was not a lesser-included offense of criminal possession of a weapon in the second degree at the time of the defendant's conviction, the trial court did not err in submitting both of these counts to the jury ( see CPL 300.40[b]; Penal Law §§ 265.02, 265.03; People v. Lowe, 48 A.D.3d 593, 594, 852 N.Y.S.2d 218; People v. Brooks, 272 A.D.2d 194, 195, 708 N.Y.S.2d 15).
Although the main prosecution witness, who identified the defendant as the person who fatally shot the victim, had an unsavory and criminal background, and testified pursuant to a cooperation agreement, these facts raised an issue of credibility which the jury resolved in favor of the prosecution ( see People v. Dennis, 223 A.D.2d 599, 600, 636 N.Y.S.2d 824; People v. Foster, 222 A.D.2d 520, 635 N.Y.S.2d 80; People v. Beard, 197 A.D.2d 582, 583, 602 N.Y.S.2d 430). In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15; People v. Danielson, 9 N.Y.3d 342, 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 their 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).
The Supreme Court properly denied, without a hearing, the defendant's motion to set aside the verdict pursuant to CPL 330.30, based upon allegations of juror misconduct in ascertaining, outside the courtroom, what a person can view at a distance of 90 feet ( see People v. Cruz, 191 A.D.2d 509, 595 N.Y.S.2d 54; People v. Suraci 137 A.D.2d 567, 568, 524 N.Y.S.2d 307). In this regard, the jurors not only made "a casual observation of a common, everyday experience which was readily available to any of the[m] without the benefit of any special expertise," but there was additional evidence presented to connect the defendant with the crimes, including, inter alia, the testimony of several eyewitnesses ( People v. Suraci, 137 A.D.2d at 568, 524 N.Y.S.2d 307; see People v. Griffin, 173 A.D.2d 216, 569 N.Y.S.2d 97). Thus, the jurors' alleged conduct here, while material to the issue of identity, did not bear upon the only evidence placing the defendant at the scene of the crimes ( cf. People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.2d 461, 399 N.E.2d 51).
The defendant's contention that he was not afforded an opportunity to address the court at the time of his sentencing, in violation of CPL 380.50(1), is unpreserved for appellate review (see People v. Green 54 N.Y.2d 878, 880, 444 N.Y.S.2d 908, 429 N.E.2d 415; People v. Chi Fong Chen, 56 A.D.3d 488, 488-489, 865 N.Y.S.2d 914; People v. Pertillar, 37 A.D.3d 740, 831 N.Y.S.2d 212). In any event, under the circumstances presented here, in which defense counsel informed the trial court that the defendant would not be making a statement based on the advice of counsel, the court substantially complied with the statutory requirements ( see People v. McClain, 35 N.Y.2d 483, 491-492, 364 N.Y.S.2d 143, 323 N.E.2d 685, cert. denied sub. nom. Taylor v. New York, 423 U.S. 852, 96 S.Ct. 98, 46 L.Ed.2d 76; People v. Lopez, 250 A.D.2d 707, 672 N.Y.S.2d 765; People v. Colon, 210 A.D.2d 247, 620 N.Y.S.2d 253).
The sentence imposed was not excessive ( see People v. Adams, 55 A.D.3d 616/617, 867 N.Y.S.2d 450; People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions are without merit.