| People v Pitt |
| 2011 NY Slip Op 04501 [84 AD3d 1275] |
| May 24, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Trevor Pitt, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and ShulamitRosenblum Nemec of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.),rendered April 13, 2009, convicting him of criminal possession of a weapon in the second degree(two counts), upon a jury verdict, and sentencing him on each count to a determinate term of 13years of imprisonment to be followed by a period of five years of postrelease supervision, withthe sentences to run concurrently.
Ordered that the judgment is modified, on the law and as a matter of discretion in the interestof justice, by vacating the conviction of criminal possession of a weapon in the second degreeunder the first count of the indictment and the sentence imposed thereon, and by reducing thesentence imposed on the second count of the indictment from a determinate term ofimprisonment of 13 years to a determinate term of imprisonment of five years and the period ofpostrelease supervision from five years to three years; as so modified, the judgment is affirmed,and the matter is remitted to the Supreme Court, Kings County, for a new trial on the first countof the indictment, and the entry of an appropriate amended judgment thereafter, if warranted.
On October 6, 2007, the defendant, while being attacked by a group of men in hisneighborhood, pulled a gun and shot one of the men, killing him. The defendant, who was 37years old when the incident took place and had no criminal record, was eventually arrested, andhe made a written statement to the police, provided a videotaped statement to an assistant districtattorney, and testified on his own behalf in the grand jury. In each of the statements, and in hisgrand jury testimony, he recounted, at great length the escalating harassment, threats, and anassault to which he had been subjected upon moving into the neighborhood, his attempts to havethe police intervene, his unsuccessful efforts to obtain emergency housing, and the shootingincident itself. He also admitted that he had possessed the gun for several weeks before theincident. The grand jury returned an indictment charging the defendant with two counts ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]),but no homicide counts. Penal Law § 265.03 (1) (b), under which the defendant wascharged in the first count of [*2]the indictment, contains as anelement that the defendant intended to use the gun unlawfully against another. Penal Law §265.03 (3), under which the defendant was charged in the second count of the indictment, doesnot contain that element. At trial, the defendant's statements and grand jury testimony wereadmitted, but, over the defendant's objection, were redacted to omit all but the portions relating tothe incident itself and about how long the defendant had possessed the gun. After the SupremeCourt told the defendant that, in the event he were to testify at trial, his testimony would besimilarly limited, he declined to testify. The defendant was convicted of both counts in theindictment, and he was sentenced on each count to a determinate term of 13 years ofimprisonment, to be followed by a period of five years of postrelease supervision, with thesentences to run concurrently.
A criminal defendant has a fundamental constitutional right to present witnesses in his or herown defense (see Chambers v Mississippi, 410 US 284, 302 [1973]; People vGreen, 70 AD3d 39, 45 [2009]; People v Taylor, 40 AD3d 782, 783-784 [2007]).Moreover, "[a] court's discretion in evidentiary rulings is circumscribed by the rules of evidenceand the defendant's constitutional right to present a defense" (People v Carroll, 95 NY2d375, 385 [2000]; see People v Klem, 80 AD3d 777, 778 [2011]; People vOcampo, 28 AD3d 684, 685-686 [2006]). While justification is not a defense to the crime ofweapon possession (see People v Pons, 68 NY2d 264 [1986]; People vAlmodovar, 62 NY2d 126 [1984]), here, the Supreme Court, in reliance on People vPons, improperly precluded the defendant from presenting any evidence to support hiscontention that, while he admittedly had possessed the weapon, he had possessed it without theintent to use it unlawfully, an essential element of the crime with which he was charged. Thiserror deprived the defendant of his constitutional right to present a defense to the charged crimeof criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]).Additionally, the Supreme Court erred in approving the redaction of his statements and grandjury testimony to have only the inculpatory portions admitted. The defendant was entitled to havehis complete statements, rather than only the inculpatory portions, introduced into evidence(see People v Dlugash, 41 NY2d 725 [1977]; People v Rodriguez, 188 AD2d 566[1992]). These errors were not harmless (see People v Crimmins, 36 NY2d 230, 237, 242[1975]). Inasmuch as the error pertained only to the first count of the indictment, however, wevacate the defendant's conviction under that count and remit the matter for a new trial on thatcount only.
In light of our determination, we need not address the defendant's remaining contentions withrespect to the first count of the indictment. The defendant's contentions with respect to hisconviction under the second count of the indictment are without merit. Although we are leavingthe conviction on that count undisturbed, we find that the sentence imposed on that count wasexcessive to the extent indicated, and reduce it accordingly. Dillon, J.P., Balkin, Eng and Roman,JJ., concur.