| People v Johnson |
| 2010 NY Slip Op 06814 [76 AD3d 1103] |
| September 28, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Donnell Johnson, Appellant. |
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.),rendered June 14, 2007, convicting him of criminal possession of a weapon in the second degree,criminal possession of a weapon in the third degree (two counts), criminal possession of acontrolled substance in the fourth degree, escape in the second degree, and resisting arrest, upona jury verdict, and imposing a sentence of a determinate term of eight years imprisonment on theconviction of criminal possession of a weapon in the second degree, an indeterminate term of 2to 4 years imprisonment on each count of criminal possession of a weapon in the third degree, torun concurrently, a determinate term of four years imprisonment on the conviction of criminalpossession of a controlled substance in the fourth degree to run consecutively to the previoussentence, an indeterminate term of 1½ to 3 years imprisonment on the conviction of escapein the second degree, and one day of imprisonment for resisting arrest, these last two sentences torun consecutively to the other sentences, and five years postrelease supervision on theconvictions of criminal possession of a weapon and three years postrelease supervision on theconviction of criminal possession of a controlled substance, to run consecutively.
Ordered that the judgment is modified, on the law, by providing that the period of postreleasesupervision imposed on the convictions of criminal possession of a weapon and the period ofpostrelease supervision for the crime of criminal possession of a controlled substance shall runconcurrently with each rather than consecutively to each other; as so modified, the judgment isaffirmed.
Contrary to the defendant's contention, the Supreme Court properly allowed the prosecutor toelicit testimony relating to the defendant's arrest during a police investigation into stolenvehicles, regardless of the fact that the defendant was not charged in relation thereto. Thistestimony served to complete the narrative of events surrounding the defendant's arrest, and thetrial court properly instructed the jury as to the purpose of this testimony (see People vTosca, 98 NY2d 660, 661 [2002]; People v Garson, 69 AD3d 650 [2010]; People v Jenkins, 49 AD3d 780[2008]; People v Monzon, 289 AD2d 595 [2001]; cf. People v Resek, 3 NY3d 385 [2004]; People v Wilkinson, 71 AD3d 249[2010]).
The legal sufficiency of evidence is established if, "after viewing the evidence in the lightmost favorable to the prosecution, any rational trier of fact could have found the essentialelements of the [*2]crime beyond a reasonable doubt" (Peoplev Contes, 60 NY2d 620, 621 [1983] [internal quotation marks omitted]). The evidence wassufficient to establish that the defendant knowingly and intentionally possessed a weapon toestablish the conviction of criminal possession of a weapon in the second degree (see People v Francis, 49 AD3d552 [2008]), and that he knowingly possessed a defaced weapon to establish the convictionof criminal possession of a weapon in the third degree (see People v Davis, 9 AD3d 468 [2004]). The evidence wassufficient to establish that the defendant committed the crime of criminal possession of acontrolled substance in the fourth degree (see People v Evans, 37 AD3d 847 [2007]). Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt as tothose crimes was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant received meaningful representation notwithstanding defense counsel's failureto obtain an independent expert to refute testimony regarding the weight of the controlledsubstance (see People v Daniels, 35AD3d 495 [2006]).
The fact that a defendant rejected a plea agreement that would have resulted in a lessersentence than he ultimately received is neither an indication that the sentence imposed followingtrial was excessive (see People v Suitte, 90 AD2d 80 [1982]), nor that the defendant waspunished for going to trial (People v Delgado, 80 NY2d 780, 781 [1992]; see People v Evans, 16 AD3d 595[2005]; People v Hinton, 285 AD2d 476 [2001]). The sentence imposed was well withinthe statutory guidelines and was neither harsh nor excessive (see People v Francis, 49 AD3d 552 [2008]; People vElhadi, 304 AD2d 982 [2003]).
However, the periods of postrelease supervision imposed should run concurrently (seePenal Law § 70.45 [5] [c]). Mastro, J.P., Skelos, Roman and Sgroi, JJ., concur.