| People v Romero |
| 2010 NY Slip Op 01992 [71 AD3d 795] |
| March 9, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Manuel Romero, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisnerof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Reichbach,J.), rendered December 19, 2007, convicting him of criminal possession of a weapon in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the sentence imposed; as so modified, the judgment is affirmed, and the matter isremitted to the Supreme Court, Kings County, for resentencing.
The defendant's contention that the evidence was legally insufficient to support hisconviction is unpreserved for appellate review, as the defendant failed, with sufficientspecificity, to move to dismiss the charge of criminal possession of a weapon in the seconddegree on such ground (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Nix, 53 AD3d 557[2008]; People v Bailey, 19 AD3d431, 432 [2005]; People v Tallarine, 223 AD2d 738 [1996]). In any event, viewingthe evidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt ofcriminal possession of a weapon in the second degree beyond a reasonable doubt (seePenal Law § 265.03 [1]; People v Pons, 68 NY2d 264, 267-268 [1986]; People v Nix, 53 AD3d 557[2008]).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewingthe record here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]). The evidence established, inter alia, that after an earlier confrontationwith the victim on the day of the shooting, the defendant returned to the defendant's barber shopand obtained his gun. Thus, the jury could have reasonably concluded that the defendantpossessed the weapon with the intent to use it unlawfully at the time he obtained it, even thoughhe may have been justified in shooting the victim when he used it (see People vDanielson, 9 NY3d at 348; People v Romero, 7 NY3d at 643; People v Smith, 16 AD3d 602[2005]). The defendant's own testimony that he displayed the weapon to"scare" the victim, whichis conduct constituting the crime of menacing in the second degree, also supports the jury'sdetermination that the defendant possessed the weapon with the intent to use it unlawfullyagainst another (see Penal Law[*2]§ 120.14 [1];§ 265.03 [1]).
The defendant's contention that the trial court failed to meaningfully respond to a jury noterequesting that it "clarify the charge" with respect to "Criminal Possession of a Weapon in theSecond Degree, with special attention to the phrase, 'used unlawfully against another,' " byinstructing the jury with respect to the relationship between justification and intent to use aweapon unlawfully (see CJI2d[NY] Penal Law art 265, Intent to Use Unlawfully andJustification), is unpreserved for appellate review (see CPL 470.05 [2]; People vNix, 53 AD3d at 558; People vBattle, 15 AD3d 413, 414 [2005]; People v Fair, 308 AD2d 597 [2003]). In anyevent, the contention is without merit. Defense counsel was given ample opportunity toparticipate in the formulation of the court's response to the jury's note (see People vBattle, 15 AD3d at 414). Under the circumstances, the court's interpretation of and itsresponse to the jury note were adequate (see People v Steinberg, 79 NY2d 673, 684[1992]; People v Malloy, 55 NY2d 296, 301 [1982], cert denied 459 US 847[1982]; People v Briggs, 61 AD3d770, 771 [2009], lv denied 12 NY3d 923 [2009]).
However, the remarks of the sentencing court demonstrated that it improperly considered thecrimes of which the defendant was acquitted as a basis for sentencing (see People v Schrader, 23 AD3d585, 585-586 [2005]; People v Smith, 305 AD2d 432 [2003]; People vReeder, 298 AD2d 468 [2002]; see also People v Zoniga, 42 AD3d 474, 475 [2007];People v Maula, 163 AD2d 180 [1990]). Accordingly, the matter must be remitted to theSupreme Court, Kings County, for resentencing.
The defendant's remaining contentions are without merit. Prudenti, P.J., Dillon, Eng andRoman, JJ., concur.