| People v Johnson |
| 2010 NY Slip Op 05459 [74 AD3d 1912] |
| June 18, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v TheotisJohnson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered May 14, 2008. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree (two counts) and criminal mischief in the fourthdegree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of criminal possession of a weapon in the seconddegree under count four of the indictment and as modified the judgment is affirmed, and a newtrial is granted on count four of the indictment.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of twocounts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1][b]; [3]) and one count of criminal mischief in the fourth degree (§ 145.00 [1]). We note atthe outset that, although Supreme Court denied his Batson challenges with respect to theprosecutor's exercise of peremptory challenges to three prospective jurors, defendant contends onappeal that the court erred only with respect to two of those prospective jurors and thus hasabandoned any issues with respect to the third prospective juror (see generally People v Simmons, 63AD3d 1605 [2009], lv denied 12 NY3d 929 [2009]; People v Bridgeland, 19 AD3d1122, 1123 [2005]). We conclude with respect to the two prospective jurors in question thatthe court properly determined that the prosecutor provided race-neutral explanations forexercising peremptory challenges to exclude them, e.g., that defense counsel had represented theson of one of those prospective jurors (see generally People v McCoy, 46 AD3d 1348, 1349, [2007] lvdenied 10 NY3d 813 [2008]), and the other had a family member who had recently beenaccused of committing a crime (see People v Craig, 194 AD2d 687, [1993] lv denied82 NY2d 716 [1993]; People v McArthur, 178 AD2d 612, [1991] lv denied79 NY2d 950 [1992]). Defendant, as the moving party, failed to meet "the ultimate burdenof persuading the court that the reasons [were] merely a pretext for intentional discrimination"(People v Smocum, 99 NY2d 418, 422 [2003]; see People v James, 99 NY2d264, 270 [2002]).
We agree with defendant, however, that the court erred in denying his request to chargecriminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]) as a lesserincluded offense of criminal possession of a weapon in the second degree as charged in count[*2]four of the indictment (§ 265.03 [1] [b]). As the Peoplecorrectly concede, "[c]riminal possession of a weapon in the fourth degree [under subdivision(1)] is a proper lesser included offense of criminal possession of a weapon in the second degree[under subdivision (1) (b)] because it is theoretically impossible to commit the greater offensewithout concomitantly committing the lesser offense" (People v Pulley, 302 AD2d 899,900, [2003] lv denied 100 NY2d 565 [2003]). In addition, we agree with defendant thatthere is a reasonable view of the evidence to support a finding that he committed the lesseroffense but not the greater (see id.; see generally People v Glover, 57 NY2d 61, 63[1982]). We therefore modify the judgment by reversing that part convicting defendant ofcriminal possession of a weapon in the second degree under count four of the indictment, and wegrant a new trial on that count of the indictment.
In light of our determination, we do not address defendant's contention with respect to thesentence imposed on count four of the indictment, and the sentence otherwise is not unduly harshor severe. We have considered defendant's remaining contention and conclude that it is withoutmerit. Present—Smith, J.P., Lindley, Sconiers, Pine and Gorski, JJ.