| People v Harris |
| 2014 NY Slip Op 01627 [115 AD3d 761] |
| March 12, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Fred Harris, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M.Lieberman, and Michael Brenner of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County(J. Goldberg, J.), rendered March 8, 2011, convicting him of attempted murder in thesecond degree, assault in the first degree, and criminal possession of a weapon in thesecond degree, upon a jury verdict, and imposing sentence, and (2) a resentence of thesame court imposed April 15, 2011, the resentence being determinate terms ofimprisonment of 15 years upon his conviction of attempted murder in the second degree,25 years upon his conviction of assault in the first degree, and 15 years upon hisconviction of criminal possession of a weapon in the second degree, with the terms ofimprisonment imposed upon the convictions of attempted murder in the second degreeand criminal possession of a weapon in the second degree to run consecutively to eachother, and the term of imprisonment imposed upon the conviction of assault in the firstdegree to run concurrently with the consecutively imposed terms of imprisonment.
Ordered that the appeal from so much of the judgment as imposed the sentence isdismissed, as that portion of the judgment was superseded by the resentence; and it isfurther,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,
Ordered that the resentence is modified, on the law, by directing that all of the termsof imprisonment run concurrently with each other; as so modified, the resentence isaffirmed.
The defendant's contention that the Supreme Court excused potential jurors basedupon hardship without conducting a sufficient inquiry is unpreserved for appellatereview (see People vUmana, 76 AD3d 1111, 1112 [2010]; People v Gonzalez, 68 AD3d 627 [2009]; People v Casanova, 62 AD3d88, 92 [2009]; People vToussaint, 40 AD3d 1017, 1017-1018 [2007]) and, in any event, without merit(see People v Umana, 76 AD3d at 1112; People v Toussaint, 40 AD3d at1017-1018).
The defendant's contention that the Supreme Court's instructions to the jury withrespect to attempted murder in the second degree and assault in the first degreeconstituted an improper constructive amendment of the indictment is unpreserved forappellate review (see CPL 470.05 [2]; People v Yakubova, 11 AD3d 644, 645 [2004]). In anyevent, the identity of the intended target [*2]is not anessential element of these crimes, and the court's instructions were proper under thecircumstances of this case (seePeople v Wells, 7 NY3d 51, 56-57 [2006]; People v Jones, 41 AD3d 507, 508 [2007]; People vRivera, 268 AD2d 445 [2000]; People v Castellanos, 234 AD2d 381 [1996];see also People v Spann, 56 NY2d 469, 473-474 [1982]).
The resentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). However, the imposition of consecutive terms of imprisonment upon thedefendant's convictions of attempted murder in the second degree and criminalpossession of a weapon in the second degree under Penal Law § 265.03 (3) wasimproper. At trial, the evidence of the defendant's possession of the subject weapon, agun, was limited to certain surveillance videos, and more than 200 still photos from thevideos, which were taken from seven cameras in and around the premises in front ofwhich the shooting occurred. Therein, the defendant was not seen with what appeared tobe a gun until he was outside the building and removed it from his shirt, seconds beforeapparently shooting at the vehicle in which the victim was a passenger. Similarly, noevidence was introduced that the defendant possessed the gun after the shooting. Noevidence was adduced at trial to establish that the defendant's possession of a gun wasseparate and distinct from his shooting of the victim (cf. People v Brown, 21 NY3d 739 [2013]). Accordingly,the terms of imprisonment imposed upon the defendant's convictions of attemptedmurder in the second degree and criminal possession of a weapon in the second degreeunder Penal law § 265.03 (3) must run concurrently (see Penal Law§ 70.25 [2]; People vRosario, 26 AD3d 271, 273-274 [2006]; People v Bernard, 210 AD2d419, 420 [1994]).
The defendant's remaining contention is without merit. Skelos, J.P., Cohen, Millerand Hinds-Radix, JJ., concur.