| People v Anderson |
| 2015 NY Slip Op 06355 [130 AD3d 1055] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Trevor Anderson, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove,Solomon Neubort, and Gabrielle Lang of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(McKay, J.), rendered January 3, 2012, convicting him of attempted murder in the seconddegree and criminal possession of a weapon in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
On March 24, 2010, at approximately 1:10 a.m., Diana Perez's boyfriend, ErickBrown-Gordon, was crossing the street in front of his house when the defendant, Perez'sex-boyfriend, walked up to him and, after a short verbal exchange, took out a .45 caliberautomatic revolver and shot him twice in the abdomen. As Brown-Gordon turned aroundand attempted to flee, the defendant shot him two more times, this time in the back.Brown-Gordon collapsed, face down, on the ground in front of his nearby home.Brown-Gordon's father, who had observed the shooting from inside his house, ran outand asked his son who had shot him. Brown-Gordon answered "Trevor," the defendant.Brown-Gordon identified the defendant from a lineup and identified him in court as theindividual who had shot him.
Contrary to the defendant's contention, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), wefind that the identification evidence was legally sufficient. Moreover, upon the exerciseof our factual review power (see CPL 470.15 [5]), we are satisfied that the jury'sfinding that the defendant was the shooter was not against the weight of the evidence (see People v Romero, 7 NY3d633, 644-645 [2006]). Neither Perez's level of intoxication nor the inconsistenciesbetween Brown-Gordon's prior statements to the police and before the grand jury, on theone hand, and his trial testimony, on the other, were so significant as to render theirtestimony incredible or unreliable (see People v Almonte, 23 AD3d 392, 393 [2005];People v Lambert, 272 AD2d 413, 414 [2000]).
We agree with the defendant that the Supreme Court improvidently exercised itsdiscretion in determining, after a Sandoval hearing (see People vSandoval, 34 NY2d 371 [1974]), that the People could inquire about the defendant'sprior conduct of possessing guns. Whereas "[c]ommission of perjury or other crimes oracts of individual dishonesty, or untrustworthiness . . . will usually have avery material relevance, whenever committed" (id. at 377), the fact that the [*2]defendant had possessed guns on a prior occasion had littlebearing on his credibility (cf.People v Grant, 7 NY3d 421, 425 [2006]). However, the error was harmless(see People v Crimmins, 36 NY2d 230 [1975]). Moreover, under thecircumstances of this case, this error did not deprive the defendant of a fair trial.
The defendant's contention that the prosecutor's improper remarks during summationdeprived him of a fair trial is unpreserved for appellate review (see CPL 470.05[2]). In any event, the challenged remarks did not deprive the defendant of a fair trial(see People v McMillan, 130 AD3d 651, 2015 NY Slip Op 05702 [2d Dept 2015]; People v Almonte, 23 AD3d 392 [2005]).
Also unpreserved for appellate review is the defendant's contention that the SupremeCourt should have rejected the verdict on the weapons possession count, because it wassubmitted for consideration only in the alternative. In any event, there is no merit to thisargument because, while the court was permitted to remedy the jury's lapse by simplyrefusing to accept the verdict on the alternative concurrent count (see People vMcDowell, 216 AD2d 419, 421 [1995]), it was not required to do so.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80,83 [1982]). Mastro, J.P., Skelos, Dickerson and LaSalle, JJ., concur.