| People v Locenitt |
| 2018 NY Slip Op 00439 [157 AD3d 905] |
| January 24, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kiaza Locenitt, Appellant. |
Paul Skip Laisure, New York, NY (Melissa S. Horlick of counsel), for appellant, andappellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Rhea A. Grob, TerrenceF. Heller, and Joyce Slevin of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M.Del Giudice, J.), rendered June 25, 2013, convicting him of criminal possession of a weapon inthe second degree, upon a jury verdict, and sentencing him, as a persistent felony offender, to anindeterminate term of imprisonment of 25 years to life, and a fine in the sum of $5,000. Theappeal brings up for review the denial (Guy J. Mangano, Jr., J.), after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating so much of the sentence as imposed a fine in the sum of $5,000; as so modified, thejudgment is affirmed.
The defendant's contention that certain identification testimony should have been suppressedbecause the process of assembling and presenting a particular photo array to the complainant wasunduly suggestive is unpreserved for appellate review (see CPL 470.05 [2]; People v Moshier, 110 AD3d 832,832 [2013]). In any event, his contention is without merit (see People v Moshier, 110AD3d at 832).
The defendant's contention that the trial court erred in excusing, sua sponte, two prospectivejurors is partially unpreserved for appellate review, as he objected to the excusal of only oneprospective juror (see CPL 470.05 [2]; People v Cunningham, 119 AD3d 601, 601 [2014]; People v Toussaint, 40 AD3d1017, 1017-1018 [2007]). In any event, the defendant's contention is without merit sinceboth prospective jurors indicated their unwillingness or inability to follow the trial court'sinstructions. The trial court, therefore, providently exercised its discretion in excusing them suasponte (see People v Cunningham, 119 AD3d at 602; People v Anderson, 48 AD3d 825, 826 [2008]; People v James, 47 AD3d 947,948 [2008]).
The defendant's contention that the People failed to adduce legally sufficient evidence toprove his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL470.05 [2]; People v Hawkins, 11NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally[*2]sufficient to establish the defendant's guilt of criminalpossession of a weapon in the second degree under Penal Law § 265.03 (3) (see People v Rivera, 152 AD3d625 [2017]; People v Pringle,136 AD3d 1061, 1061-1062 [2016]). Moreover, upon our independent review pursuant toCPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
The defendant's contention that the use of certain identification testimony during trialconstituted improper bolstering is unpreserved for appellate review (see CPL 470.05 [2];People v Bonilla, 151 AD3d735 [2017]) and, in any event, without merit. Moreover, the complainant was sufficientlyfamiliar with the defendant that her identification of him in the photo array was merelyconfirmatory (see People v Rodriguez, 79 NY2d 445, 452 [1992]; People vGissendanner, 48 NY2d 543, 552 [1979]; People v Shepard, 138 AD3d 895, 896 [2016]; People v Avent, 29 AD3d 601, 601[2006]; People v Lima, 2 AD3d754, 754 [2003]).
The defendant's contention that certain comments made by the prosecutor in summation wereimproper is unpreserved for appellate review (see CPL 470.05 [2]), as the defendantfailed to object to those comments, request curative instructions, or move for a mistrial (see People v Brown, 139 AD3d964, 966 [2016]; People vValerio, 70 AD3d 869 [2010]; People v Boyce, 54 AD3d 1052, 1052 [2008]). In any event, hiscontention is without merit, as the comments were a fair comment on the evidence (seePeople v Brown, 139 AD3d at 966; People v Green, 90 AD3d 948, 948 [2011]; People v German, 45 AD3d 861,862 [2007]), and responsive to arguments raised by the defense in summation (see People v Lugg, 124 AD3d 679,680 [2015]; People v Green, 90 AD3d at 948; People v German, 45 AD3d at 862;People v Almonte, 23 AD3d392, 394 [2005]).
The trial court properly declined to give a missing witness charge, as the defendant failed toshow that any uncalled witnesses were available and under the control of the People, had materialknowledge, and would be able to provide noncumulative testimony (see People v Edwards, 14 NY3d733, 735 [2010]; People vChestnut, 149 AD3d 772, 773 [2017]; People v Barber, 133 AD3d 868, 870 [2015]; People v Roseboro, 127 AD3d998, 999 [2015]). In any event, defense counsel was permitted to comment duringsummation on the People's failure to call the witnesses in question (see People v Williams, 5 NY3d732, 734 [2005]; People v Barber, 133 AD3d at 870).
The trial court properly denied the defendant's request to charge the jury on criminalpossession of a weapon in the fourth degree, since there was no reasonable view of the evidencethat would support a finding that the defendant committed the crime of criminal possession of aweapon in the fourth degree, but not criminal possession of a weapon in the second degree (see People v Franqueira, 143 AD3d1164, 1170 [2016]; People vLewis, 96 AD3d 878, 879 [2012]; People v Melendez, 71 AD3d 1166, 1167 [2010]).
The defendant's contention that his adjudication as a persistent felony offender violated hisright to a jury trial pursuant to Apprendi v New Jersey (530 US 466 [2000]) isunpreserved for appellate review since it was not raised at the sentencing hearing (seeCPL 470.05 [2]; People v Rosen, 96 NY2d 329, 335 [2001]; People v Washington, 26 AD3d400, 400 [2006]). In any event, his contention is without merit (see People v Bell, 15 NY3d 935,936 [2010]; People v Quinones, 12NY3d 116 [2009]; People vRivera, 5 NY3d 61, 67 [2005]; People v Rosen, 96 NY2d at 335). Thedefendant's argument that New York's persistent felony offender sentencing scheme wasimproperly applied to him is also without merit. The People proved beyond a reasonable doubtthat the defendant is a persistent felony offender within the meaning of Penal Law§ 70.10 (1), and the sentencing court's conclusion that the nature of the defendant'scriminal conduct in the instant matter, his criminal record, and his character warranted extendedincarceration and lifetime supervision is supported by the record and was not an improvidentexercise of discretion (see Penal Law § 70.10; CPL 400.20; People v Neree, 142 AD3d 1026,1027 [2016]; People v Dixon, 107AD3d 735, 736 [2013]). Nevertheless, the sentence imposed was excessive to the extentindicated herein.
The defendant's claim of ineffective assistance of counsel is based, in part, on matterappearing on the record and, in part, on matter outside the record and, thus, constitutes a mixedclaim of ineffective assistance (seePeople v Maxwell, 89 AD3d 1108, 1109 [2011]). Since the defendant's claim [*3]of ineffective assistance of counsel cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum forreviewing the defendant's claim in its entirety (see People v Spencer, 149 AD3d 983, 984 [2017]; People v Marryshow, 135 AD3d964, 965 [2016]; People v Maxwell, 89 AD3d at 1109).
The defendant's remaining contentions, raised in his pro se supplemental brief, are withoutmerit. Mastro, J.P., Chambers, Duffy and Connolly, JJ., concur.