| People v Huitt |
| 2017 NY Slip Op 03288 [149 AD3d 1481] |
| April 28, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Willie J.Huitt, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Bridget L. Field of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.), renderedFebruary 14, 2013. The judgment convicted defendant, upon a jury verdict, of assault in the firstdegree and criminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofassault in the first degree (Penal Law § 120.10 [1]) and two counts of criminalpossession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). We rejectdefendant's contention that County Court erred in denying his motion to set aside the verdictpursuant to CPL 330.30. The issues raised in that motion are based upon facts outside the recordand thus must be raised by way of a motion pursuant to CPL 440.10 (see People v Miller, 68 AD3d1135, 1135 [2009], lv denied 14 NY3d 803 [2010]; see also People v Evans, 137 AD3d1683, 1683-1684 [2016], lv denied 27 NY3d 1131 [2016]).
Contrary to defendant's further contention, the court did not abuse its discretion in denyinghis motion for a mistrial after the jury sent out a second note that it was unable to come to aunanimous verdict. The jury had been deliberating for only about two days when the courtreceived the second note, and nothing in that note "was indicative of a 'hopelessdeadlock' " (People v Hardy,26 NY3d 245, 252 [2015]). Moreover, we conclude that nothing about the secondAllen charge issued by the court was coercive. Indeed, "[t]he court's Allencharges were appropriately balanced and informed the jurors that they did not have to reach averdict and that none of them should surrender a conscientiously held position in order to reach aunanimous verdict" (id. at 252). Additionally, we reject defendant's contention that thecourt abused its discretion in denying his motion for a mistrial, which defendant sought in lightof the upcoming Thanksgiving holiday, inasmuch as there is nothing in the record to indicate thatthe holiday had any impact on the jury deliberations (see generally People v Michael, 48NY2d 1, 9-10 [1979]).
Defendant failed to preserve for our review his challenge to the legal sufficiency of theevidence inasmuch as he failed to renew his motion for a trial order of dismissal after presentingevidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]; People v Brown, 120 AD3d1545, 1546 [2014], lv denied 24 NY3d 1082 [2014]). In any event, we conclude thatthe evidence is legally sufficient to establish that defendant committed the crimes charged. ThePeople presented the testimony of an eyewitness who observed defendant fire a handgun at thevictim, as well as testimony establishing that the handgun used in the crime was recovered andoperable (see generally People vHailey, 128 AD3d 1415, 1416 [2015], lv denied 26 NY3d 929 [2015]; People v Spears, 125 AD3d 1401,1402 [2015], lv denied 25 NY3d 1172 [2015]). Viewing the evidence in light of theelements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]). We see no reason to disturb the credibility determinations of the jury(see People v [*2]Brown, 145 AD3d 1483, 1484 [2016]; People v Lawrence, 141 AD3d1079, 1082 [2016], lv denied 28 NY3d 1029 [2016]).
"By failing to object to the court's ultimate Sandoval ruling, defendant failed topreserve for our review his contention that the ruling constitutes an abuse of discretion" (People v Tolliver, 93 AD3d 1150,1151 [2012], lv denied 19 NY3d 968 [2012]), and we decline to exercise our power as amatter of discretion in the interest of justice to address that contention (see CPL 470.15[6] [a]). We likewise decline to exercise our power as a matter of discretion in the interest ofjustice to vacate defendant's conviction with respect to one of the counts for criminal possessionof a weapon in the second degree (see CPL 470.15 [3] [c]; see generally People vCarter, 63 NY2d 530, 536 [1984]; People v White, 75 AD3d 109, 125-126 [2010], lv denied15 NY3d 758 [2010]).
Finally, the sentence is not unduly harsh or severe. Present—Whalen, P.J., Smith,Centra, Curran and Scudder, JJ.