| People v Williams |
| 2012 NY Slip Op 06441 [98 AD3d 1279] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Lamont D.Williams, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Liam A. Dwyer of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered October20, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the second degree (two counts), menacing a police officer and loitering.
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 of twocounts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1][b]; [3]), and one count each of menacing a police officer (§ 120.18) and loitering (§240.35 [2]). Defendant failed to preserve for our review his contention that the conviction of oneof the two counts of criminal possession of a weapon and the conviction of menacing a policeofficer are not supported by legally sufficient evidence (see People v Gray, 86 NY2d 10,19 [1995]) and, in any event, that contention lacks merit. Viewing the evidence in the light mostfavorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we concludethat there is legally sufficient evidence to establish that defendant intended to use the revolverunlawfully against another (see § 265.03 [1] [b]; see generally People v Hunter, 46AD3d 1417, 1417 [2007], lv denied 10 NY3d 812 [2008]) and intended to place theofficers in reasonable fear of physical injury, serious physical injury or death (see §120.18; People v McCottery, 90AD3d 1323, 1324-1325 [2011]). The officers testified that defendant was ordered to drop hisweapon and refused to comply, and that defendant pointed the gun or waved the gun at theofficers as they pursued him. Viewing the evidence in light of the elements of the crimes ofcriminal possession of a weapon in the second degree and menacing a police officer as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict with respectto those three counts is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
Defendant's further contention that he was denied a fair trial by prosecutorial misconduct isnot preserved for our review (see Peoplev Thomas, 96 AD3d 1670, 1673 [2012]) and, in any event, is without merit. Althoughdefendant is correct that the prosecutor improperly cross-examined a defense witness regardingwhether he had been arrested and the grounds for those arrests (see People v Morrice, 61 AD3d1390, 1391-1392 [2009]), that one instance of prosecutorial misconduct was [*2]not so egregious as to deprive defendant of a fair trial (see People v Szyzskowski, 89 AD3d1501, 1503 [2011]). We reject defendant's contention that the prosecutor engaged inmisconduct during her summation inasmuch as the comments in question were fair response tothe summation of defense counsel (seePeople v Rivers, 82 AD3d 1623, 1624 [2011], lv denied 17 NY3d 904 [2011];People v Cunningham, 12 AD3d1131, 1132 [2004], lv denied 4 NY3d 829 [2005], lv denied on reconsideration5 NY3d 761 [2005]). We reject defendant's further contention that he was denied effectiveassistance of counsel based on the failure of defense counsel to object to the alleged instances ofprosecutorial misconduct (see People vTolliver, 93 AD3d 1150, 1151 [2012], lv denied 19 NY3d 968 [2012]; seegenerally People v Baldi, 54 NY2d 137, 147 [1981]).
Finally, defendant contends that County Court failed to comply with CPL 270.35 indischarging a sworn juror, requiring reversal. Defendant, however, consented to the discharge ofthat juror and therefore has waived that contention (see People v Barner, 30 AD3d 1091, 1092 [2006], lvdenied 7 NY3d 809 [2006]; see alsoPeople v Davis, 83 AD3d 860, 861 [2011]). Present—Scudder, P.J., Centra,Carni, Sconiers and Martoche, JJ.