| People v Jacques |
| 2014 NY Slip Op 01630 [115 AD3d 765] |
| March 12, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jacklin Jacques, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters andEdward D. Saslaw of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hanophy, J.), rendered July 26, 2010, convicting him of criminal possession of aweapon in the second degree and unlawful possession of pistol ammunition, after anonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the facts, by vacating the defendant'sconviction of criminal possession of a weapon in the second degree, vacating thesentence imposed thereon, and dismissing that count of the indictment; as so modified,the judgment is affirmed.
The defendant was convicted, after a nonjury trial, of criminal possession of aweapon in the second degree and unlawful possession of pistol ammunition. Uponfulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15; People v Romero, 7 NY3d 633 [2006]), we agree with thedefendant that the verdict of guilt with respect to the criminal possession of a weapon inthe second degree count was against the weight of the evidence.
In conducting our weight-of-the-evidence analysis, we must first determine, basedupon the credible evidence, whether a different result would have been unreasonableand, if it would not have been, then we must " 'weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987],quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Danielson, 9NY3d 342, 348 [2007]). Applying this principle to the evidence adduced at thedefendant's trial, we determine, in the first instance, that acquittal of the criminalpossession of a weapon in the second degree charge would not have been unreasonablebased upon the evidence presented (see People v Romero, 7 NY3d 633 [2006]). Moreover,weighing the evidence adduced at the trial, in light of the defendant's rebuttal of thepermissive presumption relied upon by the People to establish that the defendantpossessed the subject weapon with the intent to use it unlawfully against another(see Penal Law § 265.15 [4]; People v Vincent, 80 AD3d 633, 634 [2011]), we find thatthe defendant's conviction of criminal possession of a weapon in the second degree wasagainst the weight of the evidence. Accordingly, we reverse the judgment of convictionwith respect to this [*2]count as against the weight of theevidence (see People vMcMitchell, 110 AD3d 923 [2013]; People v Sergio, 99 AD3d 734 [2012]).
The defendant's contention that the admission of a statement made by thecomplainant after the subject incident had ended violated the defendant's rights under theconfrontation clause of the Sixth Amendment to the United States Constitution (seeCrawford v Washington, 541 US 36 [2004]) is not preserved for appellate review(see People v Marino, 21AD3d 430, 431 [2005], cert denied 548 US 908 [2006]; People v Mack, 14 AD3d517 [2005]; People v Hughes, 251 AD2d 513 [1998]). In any event, theevidence of the defendant's guilt of unlawful possession of pistol ammunition wasoverwhelming, and there is no reasonable possibility that the error might havecontributed to the defendant's conviction. Thus, the error was harmless beyond areasonable doubt (see People v Crimmins, 36 NY2d 230, 237 [1975]).
In addition, the defendant's valid waiver of a Huntley hearing (see Peoplev Huntley, 15 NY2d 72 [1965]) precludes appellate review of the propriety of thetrial court's admission into evidence of the defendant's videotaped pre-arraignmentstatements (cf. People vBenitez, 84 AD3d 826, 827 [2011]).
In light of our determination, we need not consider the defendant's contentionregarding the propriety of the imposed period of postrelease supervision. Mastro, J.P.,Chambers, Austin and Miller, JJ., concur.