| People v Chin |
| 2010 NY Slip Op 00275 [69 AD3d 752] |
| January 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lucien Chin, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio and Cristin N.Connell of counsel), for respondent.
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, criminalpossession of a weapon in the second degree, and criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the trial court erred in failing to give proper limitinginstructions concerning the jury's use of the testimony regarding his prior bad acts is unpreservedfor appellate review (see CPL 470.05 [2]; People v Giuca, 58 AD3d 750, 751 [2009]; People v Green, 56 AD3d 490,490-491 [2008]; People v Hawker, 215 AD2d 499, 500 [1995]). In any event, the courtgave an appropriate limiting instruction (see People v Norman, 40 AD3d 1128 [2007]; People v Satiro,132 AD2d 717, 717-718 [1987], affd 72 NY2d 821 [1988]).
Contrary to the defendant's contention, since criminal possession of a weapon in the thirddegree was not a lesser-included offense of criminal possession of a weapon in the second degreeat the time of the defendant's conviction, the trial court did not err in submitting both of thesecounts to the jury (see CPL 300.40 [3] [b]; Penal Law § 265.02 [4]; §265.03 [2]; People v Lowe, 48AD3d 593, 594 [2008]; People v Brooks, 272 AD2d 194, 195 [2000]).
Although the main prosecution witness, who identified the defendant as the person whofatally shot the victim, had an unsavory and criminal background, and testified pursuant to acooperation agreement, these facts raised an issue of credibility which the jury resolved in favorof the prosecution (see People v Dennis, 223 AD2d 599, 600 [1996]; People v Foster,222 AD2d 520 [1995]; People v Beard, 197 AD2d 582, 583 [1993]). In fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342, 349 [2007]), we nevertheless accord great deference to the jury's opportunity toview the witnesses, hear the testimony, and observe their demeanor (see People v Mateo,2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley,69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdictof guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).[*2]
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 ofjuror misconduct in ascertaining, outside the courtroom, what a person can view at a distance of90 feet (see People v Cruz, 191 AD2d 509 [1993]; People v Suraci, 137 AD2d567, 568 [1988]). 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 anyspecial expertise," but there was additional evidence presented to connect the defendant with thecrimes, including, inter alia, the testimony of several eyewitnesses (People v Suraci, 137AD2d at 568; see People v Griffin, 173 AD2d 216 [1991]). Thus, the jurors' allegedconduct here, while material to the issue of identity, did not bear upon the only evidence placingthe defendant at the scene of the crimes (cf. People v Brown, 48 NY2d 388 [1979]).
The defendant's contention that he was not afforded an opportunity to address the court at thetime of his sentencing, in violation of CPL 380.50 (1), is unpreserved for appellate review(see People v Green, 54 NY2d 878, 880 [1981]; People v Chi Fong Chen, 56 AD3d 488, 488-489 [2008]; People v Pertillar, 37 AD3d 740[2007]). In any event, under the circumstances presented here, in which defense counselinformed the trial court that the defendant would not be making a statement based on the adviceof counsel, the court substantially complied with the statutory requirements (see People vMcClain, 35 NY2d 483, 491-492 [1974], cert denied sub nom. Taylor v New York,423 US 852 [1975]; People v Lopez, 250 AD2d 707 [1998]; People v Colon,210 AD2d 247 [1994]).
The sentence imposed was not excessive (see People v Adams, 55 AD3d 616, 617 [2008]; People vSuitte, 90 AD2d 80 [1982]).
The defendant's remaining contentions are without merit. Santucci, J.P., Balkin, Eng andChambers, JJ., concur.