| People v Poux |
| 2010 NY Slip Op 00290 [69 AD3d 766] |
| January 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Richard Poux, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and William H. Branigan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, 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 sentencing him, as a persistent felony offender, to twoconcurrent indeterminate terms of 25 years to life imprisonment on the conviction ofmanslaughter in the first degree and criminal possession of a weapon in the second degree,respectively, and an indeterminate term of 3½ to 7 years imprisonment on the conviction ofcriminal possession of a weapon in the third degree, to be served consecutively to the other twosentences.
Ordered that the judgment is modified, on the law, by directing that the term ofimprisonment imposed on the conviction of criminal possession of a weapon in the third degreeshall run concurrently with the terms of imprisonment imposed on the convictions ofmanslaughter in the first degree and criminal possession of a weapon in the second degree; as somodified, the judgment is affirmed.
The defendant was convicted of manslaughter in the first degree, criminal possession of aweapon in the second degree, and criminal possession of a weapon in the third degree inconnection with the fatal shooting of Lawrence Ennett in a barbershop in Queens on October 29,2004. At trial, the People established that, while the defendant and the victim were arguing, thedefendant struck the victim twice in the head before the defendant's gun discharged, killing thevictim. Forensic evidence indicated that the victim was shot at a range of six to eight inches by agun recovered at the scene, and that, because of a safety mechanism, the gun could not bedischarged without pulling the trigger.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, [*2]60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to establish, beyond a reasonable doubt, that the defendant intended to causethe victim serious physical injury and caused his death (see Penal Law § 125.20[1]; People v Rochester, 168 AD2d 519 [1990]).
Since the defendant did not request that the trial court charge manslaughter in the seconddegree as a lesser included offense, the court's failure to submit such offense to the jury for itsconsideration was not error (see CPL 300.50 [1]; People v Butler, 84 NY2d 627,631 [1994]).
The court's instruction on consciousness of guilt was adequate to caution the jury as to thepotential weight to be given to such evidence, and that it could not serve as the sole basis for afinding of guilt (see People vRobinson, 10 AD3d 696 [2004]; see also People v Leyra, 1 NY2d 199, 209-211[1956]).
The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80, 86[1982]). However, the court improperly directed that the term of imprisonment imposed on theconviction of criminal possession of a weapon in the third degree was to run consecutively to theterms of imprisonment imposed on the convictions of manslaughter in the first degree andcriminal possession of a weapon in the second degree. Since all the crimes charged werecommitted through a single act, all of the terms of imprisonment that were imposed should runconcurrently, and we modify the sentence accordingly (see Penal Law § 70.25 [2];People v Walsh, 44 NY2d 631, 635 [1978]; People v Tabb, 208 AD2d 780, 781[1994]).
The defendant's remaining contentions are without merit. Mastro, J.P., Fisher, Belen andAustin, JJ., concur.