| People v Johnson |
| 2012 NY Slip Op 02965 [94 AD3d 1408] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Timothy J.Johnson, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered March30, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]).Contrary to defendant's contention, the evidence is legally sufficient to support the conviction(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Defendant was charged asan accomplice (see § 20.00) and, viewing the evidence in the light most favorableto the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that theevidence is legally sufficient to establish that defendant jointly possessed his codefendant'sloaded firearm (see People vVelasquez, 44 AD3d 412, 412 [2007], lv denied 9 NY3d 1040 [2008]).According to the evidence presented at trial, just prior to the shooting defendant was driving amoped on which the codefendant was a passenger. Immediately before the codefendant fired ashot or shots toward a vehicle, defendant stopped the moped. It may therefore be inferred thatdefendant was aware that the codefendant had a loaded firearm, and that he aided thecodefendant in that possession inasmuch as he stopped the moped in order for the codefendant tobe able to line up his target and fire. In addition, defendant's actions after the shooting furthershow that he intentionally aided the codefendant in his possession of the loaded firearm.Defendant sped away from the scene of the shooting, swerving past a police vehicle in theprocess. He ignored the officer's efforts to stop the moped. Indeed, he drove onto the sidewalk,cut through a parking lot, and tried to maneuver around the police vehicles when the policeattempted to block him. We therefore conclude that "defendant's conduct showed that he wasaware that his codefendant possessed a handgun" and that he intentionally aided the codefendantin that possession (People v Santiago, 199 AD2d 290 [1993], lv denied 82 NY2d930 [1994]; see People v Carney, 18AD3d 242, 243 [2005], lv denied 5 NY3d 882 [2005]).
Inasmuch as the evidence at trial is legally sufficient, defendant's challenge to the sufficiencyof the evidence before the grand jury is not reviewable on this appeal from the ensuing judgmentof conviction (see People vMcCullough, 83 AD3d 1438, 1439 [2011], lv denied 17 [*2]NY3d 798 [2011]; People v Laws, 41 AD3d 1205, 1206 [2007], lv denied 9NY3d 991 [2007]). Defendant failed to preserve for our review his further contention that hisright of confrontation was violated at the predicate felony offender hearing at sentencing (see People v Dennis, 91 AD3d1277, 1278 [2012]; People vMcMillon, 77 AD3d 1375, 1375-1376 [2010], lv denied 16 NY3d 897 [2011]).In any event, contrary to defendant's contention, the right of confrontation set forth inCrawford v Washington (541 US 36 [2004]) "does not apply at sentencing proceedings"(People v Leon, 10 NY3d 122,126 [2008], cert denied 554 US 926 [2008]). Finally, the sentence is not unduly harsh orsevere. Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.