| People v Hill |
| 2010 NY Slip Op 01277 [70 AD3d 1487] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Gregory Hill,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, J.),rendered May 14, 2008. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of assault inthe second degree (Penal Law § 120.05 [2]), defendant contends that the verdict isrepugnant because he was found guilty of assault but was acquitted of criminal possession of aweapon in the third degree (§ 265.02 [1]). We reject that contention. "As long as. . . '[Supreme Court's] charge did not preclude the jury from concluding thatdefendant initially possessed the [dangerous instrument] without intending to use it unlawfullyagainst another[ ] but decided to [use the dangerous instrument] as events unfolded,' a verdictfinding defendant guilty of intentional assault but not guilty of possession with unlawful intent isnot repugnant" (People v Afrika, 291 AD2d 880, 881 [2002], lv denied 98 NY2d648 [2002]). Defendant further contends that the court erred in refusing to suppress hisstatements to the police because they were the fruit of the alleged unlawful entry into hisapartment. We reject that contention as well. The warrantless entry was not unlawful, inasmuchas the People established that there were exigent circumstances justifying the entry (see People v Stevens, 57 AD3d1515 [2008], lv denied 12 NY3d 822 [2009]; cf. People v Kilgore, 21 AD3d 1257, 1257-1258 [2005]). Thepolice detectives observed that the victim was nearby and that his head was bleeding, and theyhad reason to believe that the suspect was inside the apartment with a claw hammer, whichconstitutes a dangerous weapon (see Stevens, 57 AD3d 1515 [2008]; see also Peoplev Pollard, 304 AD2d 476 [2003], lv denied 100 NY2d 585 [2003]; People vManning, 301 AD2d 661, 662-663 [2003], lv denied 99 NY2d 656 [2003]).
Defendant contends that he was denied a fair trial and due process because the court did notread a jury note verbatim to defense counsel before summoning the jury to the courtroom. "'[D]efense counsel's failure to object at a time when the court could have corrected the allegederror . . . renders defendant's contention unpreserved for our review' " (People v Samuels, 24 AD3d 1287[2005], lv denied 7 [*2]NY3d 817 [2006]; see alsoPeople v Starling, 85 NY2d 509, 516 [1995]; cf. People v DeRosario, 81 NY2d 801,803 [1993]). In any event, the record establishes that defense counsel fully understood thecontents of the note before the jury was summoned and that the court read the note in open courtbefore responding to it. Finally, the sentence is not unduly harsh or severe.Present—Centra, J.P., Peradotto, Carni, Pine and Gorski, JJ.