| People v King |
| 2011 NY Slip Op 04596 [85 AD3d 412] |
| June 2, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kenny King, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Jaime Bachrach of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered April 29,2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the third and fifth degrees, andsentencing him, as a second felony drug offender, to concurrent terms of nine years, nine years,and four years, respectively, unanimously modified, as a matter of discretion in the interest ofjustice, to the extent of reducing the sentence on the third-degree sale and possession convictionsto six years each, and otherwise affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of theevidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibilitydeterminations. The evidence established that an officer had an ample opportunity to observe thedrug sale at issue by way of a surveillance camera that permitted him to see defendant's conductas if he were only three or four feet away. The evidence also established the possession chargeson an acting-in-concert theory.
In this case, in responding to a note from the deliberating jury, the court properly exercisedits discretion in declining defendant's request that it add the standard Criminal Jury Instructions(CJI) charge on accessorial liability to its supplemental instructions. In People v Hill (52 AD3d 380[2008]), we reversed the conviction where the same court gave the same acting-in-concert chargeat issue here. We stated that "[a]lthough a trial judge is not obligated to use the standard juryinstructions . . . each time a judge declines to employ the carefully thought-outmeasured tone of the standard jury charge in favor of improvised language, an additional risk ofreversal and a new trial is created" (52 AD3d at 382 [internal quotation marks and citationomitted]). However, Hill does not control here. In that case, where the offense was gangassault in the second degree, the "orchestra" analogy in the accessorial liability charge waserroneous because it did not adequately convey that, in order to find the defendant guilty of gangassault in the second degree, the defendant had to intend to cause physical injury and intend toaid the main actor in engaging in conduct constituting the offense. In this case, the court'sinstructions adequately conveyed that the People had the burden of proving beyond a reasonabledoubt that defendant intended to sell and possess a controlled substance and intended to aid themain actor [*2]in engaging in such conduct. Nevertheless, werepeat the admonition that the better practice for the trial courts is, when feasible, to utilize thecharges contained in the Criminal Jury Instructions.
Defendant did not preserve any of his other challenges to the court's main and supplementalcharges, and we decline to review them in the interest of justice. As an alternative holding, wefind no basis for reversal. Although, again, the CJI charge would have minimized the potentialfor jury confusion, it cannot be said that in instructing the jury as it did the court did notsatisfactorily explain the concept of acting in concert as related to the facts (see People vBrooks, 217 AD2d 492 [1995], lv denied 86 NY2d 840 [1995]). Similarly, none ofthe other challenged portions of the main and supplemental charges deprived defendant of a fairtrial.
We find the sentence to be excessive to the extent indicated. Concur—Mazzarelli, J.P.,Sweeny, DeGrasse, Freedman and Abdus-Salaam, JJ.