| People v Johnson |
| 2012 NY Slip Op 03219 [94 AD3d 1144] |
| April 24, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Stephon Rumell Johnson, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.),rendered October 7, 2009, convicting him of criminal possession of a weapon in the seconddegree (two counts) and criminal possession of a weapon in the third degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed on thedefendant's conviction of criminal possession of a weapon in the third degree; as so modified, thejudgment is affirmed and the matter is remitted to the County Court, Orange County, forresentencing on the conviction of criminal possession of a weapon in the third degree inaccordance herewith.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to prove thedefendant's guilt of criminal possession of a weapon in the second degree (two counts) andcriminal possession of a weapon in the third 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 thefactfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004];People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The County Court did not improvidently exercise its discretion in permitting the People topresent evidence that the defendant was on parole at the time of the incident from which thecharges arose, and that he thereafter violated the conditions of his parole by relocating and byfailing to report to his parole officer on the day after the incident. That evidence was relevant inthat it demonstrated the defendant's consciousness of his guilt of the charged offenses (see People v Pryor, 48 AD3d1217, 1217-1218 [2008]; People v Jones, 276 AD2d 292 [2000]). Moreover, thecourt properly instructed the jury on the evaluation of this evidence (see People v Crichlow, 79 AD3d1144 [2010]; People v Jenkins,49 AD3d 780, 780-781 [2008]). The defendant's contention relating to the court'sinstructions [*2]on this issue is unpreserved for appellate reviewand, in any event, without merit (see CPL 470.05 [2]; People v Rodriguez, 91 AD3d 797, 797-798 [2012]; People vJones, 276 AD2d at 292-293; People v McClain, 250 AD2d 871, 873 [1998]).
The defendant has not established that he was deprived of his right to effective assistance ofcounsel under either the Federal or State Constitution (see Strickland v Washington, 466US 668 [1984]; People v Baldi, 54 NY2d 137, 147 [1981]).
As the People correctly concede, however, the sentence on the defendant's conviction forcriminal possession of a weapon in the third degree is improper. The subsection under which thedefendant was convicted, Penal Law § 265.02 (1), is not a violent felony offense (seePenal Law § 70.02 [1] [c]; People v Rickett, 259 AD2d 636, 637 [1999],affd 94 NY2d 929 [2000]; cf.People v Fermin, 36 AD3d 934, 937 [2007]). Therefore, the defendant was required tobe sentenced on that count to an indeterminate prison term (see Penal Law § 70.06[2]). Accordingly, the judgment must be modified by vacating the sentence imposed on thatconviction and remitting the matter to the County Court, Orange County, so that the defendantmay be resentenced on that count. The defendant's remaining contentions with respect to thesentencing proceeding are without merit (see People v Morgan, 27 AD3d 579, 580 [2006]; People vRivers, 262 AD2d 108, 108-109 [1999]).
The defendant's contention in his pro se supplemental brief is unpreserved for appellatereview (see CPL 470.05 [2]) and, in any event, is without merit (see People v Crosby, 33 AD3d719, 720 [2006]). Mastro, A.P.J., Balkin, Sgroi and Cohen, JJ., concur.