| People v Alvarez |
| 2010 NY Slip Op 06807 [76 AD3d 1098] |
| September 28, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LuisAlvarez, Appellant. |
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered September 4, 2008, convicting him of criminal possession of a weapon in the seconddegree (two counts), criminal possession of a weapon in the third degree (two counts), andcriminal possession of a weapon in the fourth degree (two counts), upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, on the facts, and as a matter of discretionin the interest of justice, by (1) vacating the convictions of criminal possession of a weapon inthe fourth degree, vacating the sentences imposed thereupon, and dismissing those counts of theindictment, and (2) vacating the sentences imposed on the convictions of criminal possession of aweapon in the second degree; as so modified, the judgment is affirmed, and the matter is remittedto the Supreme Court, Queens County, for resentencing on the convictions of criminal possessionof a weapon in the second degree.
The defendant's claim that the Supreme Court deprived him of his right to a public trial isunpreserved for appellate review (seePeople v Vatansever, 5 AD3d 406, 407 [2004]). In any event, the defendant's contentionis without merit (see Presley v Georgia, 558 US —, 130 S Ct 721 [2010];People v Colon, 71 NY2d 410 [1988], cert denied 487 US 1239 [1988]; People v Gibbons, 18 AD3d 773,773 [2005]; People v Mojica, 279 AD2d 591, 591-592 [2001]).
The defendant did not preserve for appellate review his claim that the People failed topresent legally sufficient evidence to sustain his convictions of two counts of criminal possessionof a weapon in the fourth degree. However, we elect to reach the issue in the exercise of ourinterest of justice jurisdiction (see CPL 470.15), and vacate the convictions of criminalpossession of a weapon in the fourth degree (see Penal Law § 265.01 [1], [2]), andthe sentences imposed thereon. The People presented no evidence at trial that the knife at issue,the defendant's possession of which formed the basis for these counts of the indictment, was anoperable gravity knife (see Penal Law § 265.00 [5]). Accordingly, the evidencewas legally insufficient to sustain the defendant's conviction of both counts of criminalpossession of a weapon in the fourth degree (see Penal Law § 265.00 [5]; §265.01 [1], [2]; People v Perez, 123 AD2d 889, 890 [1986]; cf. People v Birth, 49 AD3d 290[2008]; People v Smith, 309 AD2d 608, 609 [2003]).[*2]
Contrary to the defendant's contention, the prosecutor'scomments during summation did not deprive him of a fair trial, as they were fair comments onthe evidence, or were a fair response to the defendant's attack on the credibility of the prosecutionwitnesses (see People v Fortune, 70AD3d 964 [2010]; People vAvila, 69 AD3d 642, 643 [2010]). To the extent that certain comments made by theprosecutor in summation can be seen as impermissibly shifting the burden of proof to thedefendant, the error was harmless because the evidence of the defendant's guilt of criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree was overwhelming and there is no reasonable possibility that the remarks might havecontributed to the defendant's conviction on those counts (see People v Crimmins, 36NY2d 230 [1975]; People vMcCants, 67 AD3d 821, 823 [2009]).
The defendant's contention, raised in his supplemental pro se brief, that, under Besser vWalsh (601 F3d 163 [2010]), the persistent violent felony offender sentencing scheme underPenal Law § 70.08 violates the principles announced in Apprendi v New Jersey(530 US 466 [2000]), is unpreserved for appellate review (see CPL 470.05 [2]; People v Mendez, 71 AD3d 696[2010]; People v Kelly, 68 AD3d895, 896 [2009]; People vWells, 63 AD3d 967, 969 [2009]; People v Mitchell, 59 AD3d 739, 741 [2009]) and, in any event, iswithout merit (see People v Taylor,73 AD3d 1285 [2010]; People vBattease, 74 AD3d 1571 [2010]; see also People v Rawlins, 10 NY3d 136, 158 [2008], certdenied sub nom Meekins v New York, 558 US —, 129 S Ct 2856 [2009]; People v Rivera, 5 NY3d 61, 67[2005], cert denied 546 US 984 [2005]; People v Mendez, 71 AD3d at 696;People v Kelly, 68 AD3d at 896; People v Wells, 63 AD3d at 969; People vMitchell, 59 AD3d at 741).
There is a conflict between the minutes of the sentencing hearing and the amended sentenceand commitment sheet as to the sentences imposed upon the defendant in connection with hisconvictions of criminal possession of a weapon in the second degree (see generally People v Harris, 72 AD3d1110 [2010]). In light of this conflict, and because it cannot be determined whether theamended sentence and commitment sheet was signed by the sentencing judge (see People v Duncan, 42 AD3d470, 471 [2007]), we remit the matter to the Supreme Court, Queens County, forresentencing on the defendant's two convictions of criminal possession of a weapon in the seconddegree.
The defendant's remaining contentions raised in his supplemental pro se brief are withoutmerit or need not be reached in light of our determination. Fisher, J.P., Dickerson, Eng andBelen, JJ., concur.