| People v Smith |
| 2015 NY Slip Op 02793 [127 AD3d 790] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kendal Smith, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Melissa S. Horlick of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, MorganJ. Dennehy, and Indraneel Sur of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Balter, J.), rendered May 15, 2012, convicting him of criminal possession of a weaponin the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the sentence imposed; as so modified, the judgment is affirmed, andthe matter is remitted to the Supreme Court, Kings County, for resentencing inaccordance herewith.
Viewing the evidence in the light most favorable to the People (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibilityto conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342, 348-349 [2007]), we nevertheless accord great deference to theopportunity of the finder of fact to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643 [2006]).
The defendant's contention that he was deprived of a fair trial by certain remarksmade by the prosecutor during summation is unpreserved for appellate review(see CPL 470.05 [2]), and, in any event, without merit.
The defendant's contention that the evidence of his guilt was wholly circumstantialand that the trial court erred in failing to give a circumstantial evidence charge isunpreserved for appellate review, as the defendant did not request a circumstantialevidence charge or object to the charge as given (see CPL 470.05 [2]; People v Joseph, 114 AD3d878, 879 [2014]; People vWall, 92 AD3d 812, 813 [2012]; People v Reyes, 45 AD3d 785, 786 [2007]; People vHall, 181 AD2d 791 [1992]). In any event, any error was harmless, as there wasoverwhelming evidence of the defendant's guilt and no significant probability that theerror contributed to the defendant's conviction (see People v Crimmins, 36 NY2d230, 242 [1975]).
While the defendant's contention that he was improperly adjudicated a second felony[*2]offender is unpreserved for appellate review(see CPL 470.05 [2]), we consider the matter in the exercise of our interest ofjustice jurisdiction (see People vFeder, 96 AD3d 970, 971 [2012]; People v Favale, 77 AD3d 970 [2010]; People v Hamdam, 58 AD3d752, 753 [2009]). As the People correctly concede, the sentencing court imposed asecond felony offender sentence (see Penal Law § 70.06) withoutadjudicating the defendant a second felony offender in compliance with the proceduralrequirements of CPL 400.21, or any showing that the defendant was given notice and anopportunity to be heard. Accordingly, we remit the matter to the Supreme Court, KingsCounty, for resentencing in accordance with the mandates of CPL 400.21. Mastro, J.P.,Chambers, Austin and Miller, JJ., concur.