| People v Mosher |
| 2012 NY Slip Op 02720 [94 AD3d 1231] |
| April 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AlonzoMosher, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Drago,J.), entered November 10, 2009, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the second degree (two counts).
Following an incident in which defendant fought with an individual named Victor Toomerand allegedly discharged a firearm on Grant Avenue in the City of Schenectady, SchenectadyCounty, defendant was charged by indictment with eight counts of reckless endangerment in thefirst degree and two counts of criminal possession of a weapon in the second degree. A jury trialwas held in Supreme Court in March and April 2009, but, after several days of deliberations, thejury indicated that it was deadlocked, and the court released the jurors without a verdict.Following a second trial in September 2009 before County Court, defendant was convicted oftwo counts of criminal possession of a weapon in the second degree. County Court thereaftersentenced him to a prison term of five years with three years of postrelease supervision.Defendant appeals.
Initially, defendant's challenge to the legal sufficiency of the evidence is not properlypreserved for appellate review (see CPL 470.05 [2]; People v Lane, 7 NY3d 888, 889 [2006]). As for defendant'sargument that the verdict is against the weight of the evidence, two [*2]disinterested witnesses testified that they observed defendantcarrying a weapon on Grant Avenue after defendant fought with Toomer, one of whom alsotestified that she heard defendant threaten to kill Toomer. Other witnesses testified that theyheard gunshots around the time that defendant and Toomer were fighting. Spent bullet casingswere found by police during their investigation, and laboratory tests revealed that the shirt thatdefendant had been wearing contained gunshot residue on it. Although defendant presentedwitnesses who testified that they did not observe defendant with a gun and claimed that heinstead had a cell phone in his hand, those witnesses were impeached with prior inconsistentstatements and prior bad acts, which likely affected their credibility before the jury. Consideringthe evidence in a neutral light, and according great deference to the jury's opportunity to view thewitnesses, hear the testimony and observe demeanor, we are satisfied that the verdict was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633, 644-645 [2006]).
None of the alleged errors made by County Court deprived defendant of his right to a fairtrial. A model weapon was properly admitted into evidence for demonstrative purposes becausethe witness testimony and other evidence established that the model weapon was significantlysimilar to the weapon allegedly used by defendant (see People v Brims, 19 AD3d 433, 433 [2005], lv denied 5NY3d 804 [2005]; People v Torres, 258 AD2d 824, 825 [1999]), and County Courtappropriately instructed the jury that the model weapon was admitted strictly for demonstrativepurposes (see People v Pike, 131 AD2d 890, 891 [1987], lv denied 70 NY2d 716[1987]). Although the People may have been improperly allowed to impeach defendant'scredibility with evidence that he had previously lied under oath regarding whether he possessed areal estate license and whether he was aware of how much time Toomer had spent in prison, inlight of the somewhat trivial nature of the prior statements and considering the totality of theevidence in the record, any error in this regard was harmless as "there was no significantprobability that the jury would have acquitted had the error not occurred" (People v Grant, 7 NY3d 421, 424[2006]). Defendant's claim of prosecutorial misconduct during summation is unpreserved forreview because defendant either made only general objections or failed to make any objection atall to the vast majority of the complained about statements (see CPL 470.05 [2];People v Tonge, 93 NY2d 838, 839-840 [1999]; People v Tevaha, 84 NY2d 879,881 [1994]). Moreover, when defense counsel did object, County Court responded appropriatelyand, overall, it cannot be said that the prosecutor's conduct deprived defendant of a fair trial (see People v Ciccone, 90 AD3d1141, 1145 [2011]).
Finally, we find that defendant waived any objection to the alleged lack of a transfer orderfrom Supreme Court to County Court (see People v Wilson, 14 NY3d 895, 897 [2010]) and his challengesto statements made by the People during jury selection and to the length of the People'ssummation were not preserved for appellate review. Defendant's remaining contentions,including his claim of ineffective assistance of counsel, have been considered and found to bewithout merit.
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.