| People v Jackson |
| 2011 NY Slip Op 03263 [83 AD3d 962] |
| April 19, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kareem Jackson, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.),rendered July 22, 2008, convicting him of assault in the second degree and criminal possession ofa weapon in the third degree, upon a jury verdict, and sentencing him to a determinate term ofimprisonment of seven years plus five years' postrelease supervision on the conviction of assaultin the second degree and an indeterminate term of imprisonment of 3½ to 7 years on theconviction of criminal possession of a weapon in the third degree, to be served consecutively.
Ordered that the judgment is modified, on the law, by directing that the term ofimprisonment imposed on the conviction of criminal possession of a weapon in the third degreeshall run concurrently with the term of imprisonment imposed on the conviction of assault in thesecond degree; as so modified, the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People v Romero,7 NY3d 633 [2006]).
However, the County Court erred in directing that the term of imprisonment imposed on theconviction for criminal possession of a weapon in the second degree run consecutively with theterm of imprisonment imposed on the conviction for assault in the second degree. The evidenceadduced at trial demonstrated that the defendant retrieved an object just before he and the victimleft a house together. The two then walked down a road until the defendant found a bicycle in aditch, which he retrieved, and then rode alongside the victim. After turning onto another road, thedefendant cut the victim's face and breast with the object he had retrieved just before leaving thehouse, and then rode off on the bicycle. Based on such evidence, the prosecution did not establishthat the defendant possessed a dangerous instrument with a purpose unrelated to his intent to useit against the victim (see Penal Law § 70.25 [2]; People v Hamilton, 4 NY3d 654[2005]; People v Hernandez, 46AD3d 574, 576-577 [2007]; Peoplev Ivory, 27 AD3d 664 [2006]; cf. People v Salcedo, 92 NY2d 1019 [1998]).Therefore, the sentence imposed for the conviction of criminal possession of a weapon in thethird degree must run [*2]concurrently with the sentence imposedfor the conviction of assault in the second degree.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Angiolillo, J.P., Florio, Belen and Miller, JJ., concur.