| People v Francis |
| 2008 NY Slip Op 01964 [49 AD3d 552] |
| March 4, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Desmond Francis, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.),rendered October 27, 2005, convicting him of criminal possession of a weapon in the seconddegree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up forreview, inter alia, the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress statements made by the defendant to law enforcement officials.
Ordered that the judgment is affirmed.
The defendant's contention that the court erred in denying that branch of his omnibus motionwhich was to suppress his videotaped statement to the police is without merit. The totality of thecircumstances surrounding his interrogation at the station house, as revealed at a Huntleyhearing (see People v Huntley, 15 NY2d 72 [1965]), supports the hearing court'sconclusion that the defendant's videotaped statement was voluntarily made (see People vTarsia, 50 NY2d 1, 13 [1980]; People v Hasty, 25 AD3d 740, 741 [2006]). The defendant wasadvised of and knowingly and intelligently waived his Miranda rights (see Miranda vArizona, 384 US 436 [1966]; People v Miles, 276 AD2d 566 [2000]). There was nocredible evidence that the detectives threatened or coerced the defendant, or that the policeunlawfully isolated him from any supportive adults attempting to see him (see People vSalaam, 83 NY2d 51, 55 [1993]; People v Knudsen, 34 AD3d 496 [2006]; People v Chung,287 AD2d 575, 576 [2001]).
The defendant's contention that the evidence was legally insufficient to prove his guilt is[*2]without merit. Viewing the evidence in the light mostfavorable to the prosecution, we find that it was legally sufficient to establish the elements ofcriminal possession of a weapon in the second degree beyond a reasonable doubt on both counts(see Penal Law § 265.03 [2]; People v Contes, 60 NY2d 620, 621 [1983];People v Johnson, 30 AD3d439 [2006]; People v Bailey, 19AD3d 431, 432 [2005]).
Because the judgment of conviction was based on legally sufficient evidence, the defendant'schallenges to the instructions given to the grand jury are not reviewable on appeal (see People v Goodwine, 46 AD3d702 [2007]; People v Scoon, 303 AD2d 525 [2003]).
Contrary to the defendant's contention, the trial court's instructions to the jury during voirdire were not improper. The entirety of the jury charge, both at voir dire and before deliberations,adequately conveyed the People's burden to prove the defendant's guilt beyond a reasonabledoubt, and that the jury would be the factfinder (see People v Sanchez, 29 AD3d 608 [2006]; People v Brown,220 AD2d 250, 250-251 [1995]).
The defendant's contentions regarding the jury charge before deliberations are unpreservedfor appellate review, as he failed to raise them before the trial court (see People v Caldarola, 45 AD3d600 [2007]; People v Johnson,30 AD3d 439 [2006]). In any event, these contentions are without merit (see People v Perez, 2 AD3d 882[2003]).
The defendant's contention that the prosecutor's failure to provide defense counsel with themedical examiner's autopsy notes constituted misconduct is unpreserved for appellate review, asthe defendant failed to raise this contention before the trial court. In any event, this contention iswithout merit. With respect to the defendant's contention that certain remarks made by theprosecutor during summation were improper, the challenged remarks were fair comment on theevidence, responsive to arguments raised by the defense, and remained within the broad boundsof permissible rhetorical comment (seePeople v Dorgan, 42 AD3d 505 [2007], lv denied 9 NY3d 1032 [2008]; People v Williams, 37 AD3d 626,627 [2007]).
The defendant's claim of ineffective assistance of counsel is without merit. Taking intoconsideration the totality of the evidence, the law, and the circumstances of the case, the recordshows that defense counsel provided meaningful representation (see People v Benevento,91 NY2d 708, 712 [1998]; People vJordan, 44 AD3d 875, 876 [2007], lv denied 9 NY3d 1035 [2008]). Mere losingtactics do not constitute ineffective assistance of counsel (see People v Finley, 27 AD3d 763 [2006]; People v Gomez, 18 AD3d 478[2005]).
The defendant's sentence, which was within statutory parameters (see Penal Law§§ 70.00, 265.03), was not excessive. The court did not err in imposing consecutivesentences, as the acts underlying each count of criminal possession of a weapon in the seconddegree were separate and distinct (cf.People v Dean, 8 NY3d 929, 930-931 [2007]; People v Jones, 41 AD3d 507 [2007]).
The defendant's remaining contentions are without merit. Rivera, J.P., Lifson, Angiolillo andBalkin, JJ., concur.