| People v Turner |
| 2007 NY Slip Op 10190 [46 AD3d 847] |
| December 18, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Hudson Turner, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dunlop,J.), rendered November 19, 2004, convicting him of attempted murder in the second degree (twocounts), criminal possession of a weapon in the second degree, and reckless endangerment in thefirst degree, upon a jury verdict, and sentencing him to determinate terms of imprisonment of 15years on the conviction of attempted murder in the second degree (count one), 20 years on theconviction of attempted murder in the second degree (count two), and 10 years on the convictionof criminal possession of a weapon in the second degree, to be served consecutively, and anindeterminate term of imprisonment of 2 to 6 years on the conviction of reckless endangermentin the first degree, to be served concurrently with the sentences on the other convictions.
Ordered that the judgment is modified, on the law, by directing that the sentence imposed onthe conviction of criminal possession of a weapon in the second degree shall run concurrentlywith the sentences imposed on the remaining convictions; as so modified, the judgment isaffirmed.
The People introduced evidence, over the defendant's objection, that the defendant and hisaccomplice were members of the "Bloods." While we agree that the use of such evidenceexceeded the bounds for which it was arguably relevant, any error in the admission of theevidence regarding the defendant's alleged membership in the "Bloods," and other testimonyabout the "Bloods," does not require reversal. The evidence of the defendant's identification asone of the perpetrators was overwhelming without regard to such improperly admitted evidence.Moreover, [*2]there is no significant probability that the verdictwould have been different absent the improper testimony; the error was thus harmless (seePeople v Crimmins, 36 NY2d 230, 238, 242 [1975]; People v Griffin, 12 AD3d 458, 459 [2004]; cf. People vForgione, 134 AD2d 514, 516 [1987]).
The defendant's contention regarding the court's reasonable doubt charge was not preservedfor appellate review (see CPL 470.05 [2]), and we decline to review it in the exercise ofour interest of justice jurisdiction (see CPL 470.15 [3] [c]). The defendant was notdeprived of his right to effective assistance of counsel based on counsel's failure to object to thereasonable doubt instruction (see Strickland v Washington, 466 US 668 [1984];People v Baldi, 54 NY2d 137, 147 [1981]; cf. People v Turner, 5 NY3d 476, 478 [2005]). The defendantfailed to preserve his challenge to the court's instruction on reckless endangerment in the firstdegree (see Penal Law § 120.25), and we decline to review it in the exercise of ourinterest of justice jurisdiction (see CPL 470.15 [3] [c]).
As the People correctly concede, the Supreme Court erred in ordering that the term ofimprisonment imposed on the conviction for criminal possession of a weapon in the seconddegree run consecutively to the terms of imprisonment imposed on the remaining convictions(see Penal Law § 70.25 [2]). Therefore, we modify the judgment by directing thatthe sentence imposed on the conviction for criminal possession of a weapon in the second degreebe served concurrently with the remaining counts.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Crane, J.P., Rivera, Florio and Balkin, JJ., concur.