| People v Hawkins |
| 2013 NY Slip Op 06890 [110 AD3d 1242] |
| October 24, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMichael Hawkins, Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered June 25, 2010, upon a verdict convicting defendant of the crimeof criminal possession of a weapon in the second degree (two counts).
Following an altercation in the street where a man was shot in the arm, policeapprehended defendant and he confessed to shooting the victim. He was charged withcriminal possession of a weapon in the second degree (two counts) and recklessendangerment in the first degree. At trial, he was convicted only of the counts of criminalpossession of a weapon. County Court sentenced him to concurrent prison terms of 15years and five years of postrelease supervision. Defendant appeals.
The verdict was supported by legally sufficient evidence and was not against theweight of the evidence. To support the two counts here, the People were required toprove that defendant possessed a loaded firearm in a place other than his home orbusiness (see Penal Law § 265.03 [3]), and that he possessed a loadedfirearm with intent to use it unlawfully against another person (see Penal Law§ 265.03 [1] [b]). The victim was shot in the street, so it is undisputed thatsomeone possessed a loaded firearm in a place other than a home or business and it wasused against another person. Defendant challenges the voluntariness of his confessionand the proof regarding his identity as the shooter and possessor of the pistol. Ifvoluntary, his [*2]confession need only be corroboratedby some proof that the charged crime was committed by someone (see CPL60.50; People v Button, 56AD3d 1043, 1045 [2008], lv dismissed 12 NY3d 781 [2009]).
Defendant's mother, girlfriend and brother testified that they were detained by policeon the day of the shooting. His girlfriend testified that defendant informed her, at thepolice station that night, that the police coerced him to admit to the shooting to preventhis family from being criminally charged, and that he dictated a statement for her to signat the direction of the police. On the other hand, several police officers testified that nocoercion was employed and defendant voluntarily gave his statement. In the videotapedstatement, defendant confessed in detail to possessing the gun and shooting the victim,and also acknowledged that his statement was not coerced. The confession wascorroborated in general by proof that a shot was fired on the street during the incident. Itwas specifically corroborated because the gun was found where defendant told theofficers it would be located. Additionally, he stated in the confession that the gun hadfive bullets when he went to the scene of the incident, one was ejected as a live roundwhen he cocked the gun next to his mother's vehicle with the door open, and he shotonce. The five bullets were accounted for: the gun that was retrieved contained three liverounds, one live round that was recovered from his mother's vehicle was consistent withbeing ejected from that gun, and a spent casing was found on the sidewalk near wherethe shooting occurred. This evidence further corroborated the confession. Although noeyewitness testified that defendant possessed or shot the gun and no fingerprints or DNAon the gun could be matched to defendant, he admitted the crime in his confession andthe defense witnesses' testimony was attacked or inconsistent with the confession. Wefind that defendant's statement was voluntary and sufficiently corroborated, providinglegally sufficient evidence for the verdict, and, giving deference to the jury's credibilitydeterminations, the verdict was not against the weight of the evidence (see People v Bianca, 91 AD3d1127, 1127-1128 [2012], lv denied 19 NY3d 862 [2012]; People v Johnson, 79 AD3d1264, 1266 [2010], lv denied 16 NY3d 832 [2011]).
Defendant did not object to the People's opening statement and did not object to mostof the comments that he now complains about from the People's summation, leaving anychallenge to those comments unpreserved for our review (see People v Perry, 95 AD3d1444, 1446 [2012], lv denied 19 NY3d 1000 [2012]; People v Terry, 85 AD3d1485, 1487 [2011], lv denied 17 NY3d 862 [2011]). The few comments thatwere objected to were not improper because they were either responsive to defendant'sattack on the integrity of the police witnesses or constituted fair comment on theevidence (see People vLeonard, 83 AD3d 1113, 1117 [2011], affd 19 NY3d 323 [2012]; People v Pine, 82 AD3d1498, 1502 [2011], lv denied 17 NY3d 820 [2011]).
By failing to object to the alleged repugnancy of the verdict before the jury wasdischarged, defendant failed to preserve that argument for appellate review (see People v McCottery, 90AD3d 1323, 1326 [2011], lv denied 19 NY3d 975 [2012]; People v Smith, 89 AD3d1126, 1131-1132 [2011], lv denied 18 NY3d 962 [2012]). Defendant did notpreserve his current attack on the jury charge by either requesting an expanded charge onthe voluntariness of his confession (see CJI2d[NY] Statements [Admissions,Confessions]—Expanded Charge on Traditional Voluntariness) or objecting to thejury charge that was given on that topic (see People v Holzer, 52 NY2d 947, 948[1981]; People v Rogers, 94AD3d 1246, 1251 [2012], lv denied 19 NY3d 977 [2012]). Similarly,defendant did not object when County Court ordered that infants be excluded from thecourtroom during summations and the charge to the jury, thus rendering unpreserved hisargument that the court violated his right to a public trial (see People v Marsalis, 3 AD3d509, 510 [2004], lv denied 2 NY3d 802 [2004]; People vBrathwaite, 240 AD2d 419, 419 [1997], lv denied 90 NY2d 1009[*3][1997]; People v Jackson, 226 AD2d 476, 477[1996], lv denied 88 NY2d 987 [1996]).
Defendant's remaining contentions have been reviewed and are without merit.
Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.