| People v Khan |
| 2011 NY Slip Op 07860 [89 AD3d 750] |
| November 1, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PheodKhan, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, andAdam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Walsh, J.),rendered February 18, 2010, convicting him of criminal possession of a weapon in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of criminal possession of a weapon in the second degree is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt ofcriminal possession of a weapon in the second degree beyond a reasonable doubt. Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
In addition, the defendant's contention that the Supreme Court erred in failing to instruct thejury on the defense of justification with respect to the charge on criminal possession of a weaponin the second degree is unpreserved for appellate review (see People v Albritton, 69 AD3d 866 [2010]; People v Smith, 54 AD3d 421,422 [2008]; People v Herring, 282 AD2d 546 [2001]) and, in any event, is without merit(see People v Pons, 68 NY2d 264, 267 [1986]; People v Jenkins, 81 AD3d 662, 663 [2011]).
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise itsdiscretion in refusing to disqualify a sworn juror who expressed apprehension after one memberof a group of five or six individuals, who were seen inside the courtroom, had approached thejuror to talk. Upon questioning, the juror unequivocally stated that she could reach a fair and[*2]impartial decision. The Supreme Court properly determinedthat the juror was not grossly unqualified to serve as a member of the jury (see CPL270.35; People v Parnell, 60 AD3d1087 [2009]; People v Guzman, 257 AD2d 630 [1999]; People v Attanasio,191 AD2d 447, 448 [1993]).
Furthermore, the defendant's contention that the Supreme Court improperly consideredcharges of which he was acquitted as a basis for imposing sentence is without merit (see People v Morgan, 27 AD3d579, 580 [2006]; People v Robinson, 250 AD2d 629 [1998]).
The defendant's contention that his sentence violated the Eighth Amendment prohibitionagainst cruel and unusual punishment is without merit, as there are no exceptional circumstancespresent here warranting modification of the challenged sentence, which was within thepermissible statutory limit (see People v Jones, 39 NY2d 694, 695 [1976]; People v Cruz, 54 AD3d 962[2008]). Moreover, the sentence imposed was not excessive (see People v Suitte, 90AD2d 80 [1982]).
The defendant's remaining contention is unpreserved for appellate review and, in any event,without merit. Mastro, J.P., Eng, Belen and Hall, JJ., concur.