| People v Johnson |
| 2009 NY Slip Op 04707 [63 AD3d 470] |
| June 9, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v ZaviaJohnson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sally Pritchard of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered February1, 2007, convicting defendant, after a jury trial, of criminal possession of a weapon in the thirddegree and criminal mischief in the third degree, and sentencing him, as a second felonyoffender, to an aggregate term of 2½ to 5 years, unanimously affirmed.
Defendant's challenge to the sufficiency of the evidence supporting his conviction ofthird-degree weapon possession is unpreserved and we decline to review it in the interest ofjustice. As an alternative holding, we find that there was legally sufficient evidence to establishdefendant's intent to use a baseball bat unlawfully against the victim, not merely against thevictim's property, and that the bat constituted a dangerous instrument within the meaning ofPenal Law § 10.00 (13). The jury could have reasonably inferred that defendant menacedthe victim by conveying an implied threat to strike him with the bat, and that defendant also usedthe bat in a manner that was readily capable of causing serious physical injury even if intendedto damage the victim's car. We further find that the verdict was not against the weight of theevidence (see People v Danielson, 9NY3d 342 [2007]).
The court's Sandoval ruling, which placed appropriate limits on elicitation ofdefendant's extensive criminal record, balanced the appropriate factors and was a proper exerciseof discretion (see People v Hayes, 97 NY2d 203 [2002]; People v Walker, 83NY2d 455, 458-459 [1994]). Concur—Mazzarelli, J.P., Sweeny, DeGrasse, Freedman andAbdus-Salaam, JJ.