| People v Fowler |
| 2007 NY Slip Op 08610 [45 AD3d 1372] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Kevin Fowler,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered February1, 2006. The judgment convicted defendant, upon a jury verdict, of assault in the first degree,criminal use of a firearm in the first degree and criminal possession of a weapon in the seconddegree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by reversing that part convicting defendant of criminalpossession of a weapon in the second degree and dismissing count five of the indictment and asmodified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of assault inthe first degree (Penal Law § 120.10 [1]), criminal use of a firearm in the first degree(§ 265.09 [1] [b]) and criminal possession of a weapon in the second degree (§265.03 [2]), defendant contends that there were two Batson violations based on theprosecutor's peremptory challenges to two prospective jurors. Contrary to the contention of thePeople, we conclude that defendant preserved his contention for our review. We furtherconclude, however, that the prosecutor offered nonpretextual explanations for exercisingperemptory challenges with respect to the two prospective jurors. The first challengedprospective juror stated that he has an incarcerated cousin who contends that he was wronglyconvicted, thus providing the prosecutor with a nonpretextual explanation for challenging thatprospective juror (see People v Pacheco, 308 AD2d 403 [2003]; People v Issac,265 AD2d 190 [1999], lv denied 94 NY2d 904 [2000]; see also People vCuthrell, 284 AD2d 982 [2001]). The second challenged prospective juror stated that she hadboth good and bad experiences with police officers "[b]ecause [she was] a woman, because [shewas] a Latino, [and] because [she had] an accent." The prosecutor could reasonably believe basedon that statement that the prospective juror may have mistrusted police officers (see People v Cunningham, 21 AD3d746, 748 [2005], lv dismissed 6 NY3d 775 [2006]; cf. People v Van Hoesen,307 AD2d 376, 378 [2003]).
Contrary to the further contention of defendant, we conclude that "the mistake of [defense]counsel with respect to [the] minimum sentence does not rise to the level of ineffective assistanceof counsel" (People v Modica, 64 NY2d 828, 829 [1985]). We further conclude thatCounty [*2]Court properly admitted Molineux evidenceconcerning a prior altercation between defendant and an eyewitness to the shooting. Thatevidence was relevant to establish defendant's intent, identity and motive in shooting at theeyewitness and a group of his friends, including the victim (see e.g. People v Lee, 284AD2d 412 [2001], lv denied 96 NY2d 921 [2001]; People v Wheeler, 257 AD2d673 [1999], lv denied 93 NY2d 930 [1999]; see generally People v Allweiss, 48NY2d 40, 47 [1979]).
As the People correctly concede, however, criminal possession of a weapon in the seconddegree is an inclusory concurrent count of criminal use of a firearm in the first degree and, "underthe circumstances of this case[,] defendant could not have committed the crime of criminal use ofa firearm without committing the crime of criminal possession of the same firearm" (People vLuster, 148 AD2d 305, 306 [1989], lv denied 74 NY2d 666 [1989]). We thereforemodify the judgment accordingly (see id.; see also People v Dinsio, 286 AD2d517, 520 [2001], lv denied 97 NY2d 703 [2002], cert denied 536 US 942 [2002]).The sentence on the remaining two counts is not unduly harsh or severe.Present—Scudder, P.J., Martoche, Smith, Lunn and Pine, JJ.