| People v Atchison |
| 2013 NY Slip Op 07336 [111 AD3d 1319] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EdgarP. Atchison, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered May 2, 2012. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree, unlawful fleeing a police officerin a motor vehicle in the third degree and reckless driving.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence of imprisonmentfor criminal possession of a weapon in the second degree to a determinate term of 10years and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of,inter alia, criminal possession of a weapon in the second degree (Penal Law §265.03 [3]), defendant contends that he was deprived of a fair trial by improper andprejudicial comments made by the prosecutor during his cross-examination of a defensewitness. Specifically, defendant contends that the prosecutor, in asking the defensewitness whether she told the prosecutor in a meeting prior to trial that she was afraid ofdefendant, testified to facts not in evidence and thereby placed the prosecutor's credibilityat issue. Although we agree with defendant that the prosecutor's questions about thewitness's statements to him were improper (see generally People v Paperno, 54NY2d 294, 300-301 [1981]; People v Blake, 139 AD2d 110, 114 [1988]), weconclude that Supreme Court's failure to sustain defense counsel's objection to the line ofquestioning is harmless error. The evidence of guilt is overwhelming, and there is noreasonable possibility that the jury would have acquitted defendant if the prosecutor hadnot improperly placed his own credibility at issue before the jury (see generallyPeople v Crimmins, 36 NY2d 230, 237 [1975]). We note in particular that defendantadmitted at trial that he possessed the firearm in question, but claimed that his possessionwas temporary and innocent. According to defendant, the gun belonged to someone else,and the only time he possessed the weapon was when he threw it out of the window ofhis moving vehicle, which the police were pursuing. Even accepting defendant'stestimony as true, we conclude that his conduct was "utterly at odds with any claim ofinnocent possession" (People v Williams, 50 NY2d 1043, 1045 [1980]; see People v McCoy, 46 AD3d1348, 1350 [2007], lv denied 10 NY3d 813 [2008]).
We agree with defendant, however, that the sentence imposed for criminalpossession of a [*2]weapon in the seconddegree—a determinate term of imprisonment of 15 years plus a term of postreleasesupervision of five years, the maximum punishment permitted by law—is undulyharsh and severe. Defendant has no prior felony convictions, and he served four years inthe United States Navy, receiving an honorable discharge. Also, it is undisputed thatdefendant did not threaten anyone with the weapon or use it in a violent manner.Although we are mindful that defendant's actions endangered the lives of innocentpeople, including the police officers who were pursuing his vehicle, we conclude that themaximum punishment is not warranted. We therefore modify the judgment as a matter ofdiscretion in the interest of justice by reducing the sentence imposed for criminalpossession of a weapon in the second degree to a determinate term of imprisonment of 10years (see generally CPL 470.15 [6] [b]), to be followed by the five-year periodof postrelease supervision imposed by the court.
We have reviewed defendant's remaining contention and conclude that it lacks merit.Present—Fahey, J.P., Peradotto, Lindley, Sconiers and Whalen, JJ.