| People v Jones |
| 2016 NY Slip Op 03195 [138 AD3d 1144] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v William Jones, Appellant. |
Lynn W. L. Fahey, New York, NY (Denise A. Corsí of counsel), forappellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart andAnne Grady of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Collini, J.), rendered December 12, 2012, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
To the extent the defendant contends that the People did not present legally sufficientevidence that the gun he was charged with having possessed was operable, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620 [1983]), we find that the evidence was legally sufficient to establish thedefendant's guilt of criminal possession of a weapon in the second degree beyond areasonable doubt (see Penal Law § 265.03 [3]; People v Samba, 97 AD3d411, 414-415 [2012]; People v Edwards, 81 AD3d 848, 848-849 [2011];People v Moore, 303 AD2d 691, 692 [2003]; People v D'Amico, 261AD2d 635 [1999]; People v Solis, 214 AD2d 689, 689 [1995]; People vTemple, 165 AD2d 748, 749 [1990]). Furthermore, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the factfinder'sopportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490,495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The fact thatone of the People's witnesses had an unsavory background and testified pursuant to acooperation agreement did not render his testimony incredible (see People v Bernard, 100AD3d 916, 916-917 [2012]; People v Chin, 69 AD3d 752, 752-753 [2010]; People v Manley, 60 AD3d870, 870 [2009]).
The defendant's contentions that the Supreme Court erred in giving the jury a"diluted" charge on assessing the credibility of the witness who testified pursuant to acooperation agreement and in failing to provide a circumstantial evidence charge areunpreserved for appellate review (see CPL 470.05 [2]; People v Joseph, 114 AD3d878, 879 [2014]; People vGonzalez, 70 AD3d 855, 855 [2010]; People v Irizarry, 298 AD2d 600[2002]). In any event, both contentions are without merit. The court instructed the jurythat it "may consider whether a witness hopes for or expects to receive a particularbenefit for testifying. If so, you may consider whether, and to what extent, that benefitaffected the [*2]truthfulness of the witness's testimony."This charge was consistent with the current pattern Criminal Jury Instructions (seeCJI2d[NY] Credibility of Witnesses—Benefit) and "adequately conveyed tothe jury the appropriate standard by which to evaluate the testimony of [such a] witness"(People v Kettreis, 19 AD3d706, 707 [2005]; see People v Jackson, 74 NY2d 787, 790 [1989]). Further,since the People's case against the defendant consisted of both direct and circumstantialevidence, he was not entitled to a circumstantial evidence charge (see People v Santiago, 22NY3d 990, 991-992 [2013]; People v Roldan, 88 NY2d 826, 827 [1996];People v Daddona, 81 NY2d 990, 992 [1993]; People v Barnes, 50 NY2d375, 380 [1980]; People v Von Werne, 41 NY2d 584, 590 [1977]; People vJoseph, 114 AD3d at 879; People v Clark, 100 AD3d 1013, 1014 [2012]; People v Garson, 69 AD3d650, 651 [2010]).
Since the defendant's contentions with respect to the alleged errors in charging thejury are without merit, the failure of trial counsel to request a circumstantial evidencecharge, or object to the charge given, cannot be said to have constituted ineffectiveassistance of counsel (seePeople v Fabers, 133 AD3d 616, 617 [2015]; People v Torres, 108 AD3d474, 475 [2013]; People vGeddes, 49 AD3d 1255, 1256-1257 [2008]; People v Walker, 274 AD2d600, 602 [2000]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Leventhal, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.