| People v King |
| 2019 NY Slip Op 03813 [172 AD3d 1098] |
| May 15, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Breeze King, Appellant. |
Paul Skip Laisure, New York, NY (De Nice Powell of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, andRhea A. Grob of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guy JamesMangano, Jr., J.) rendered February 26, 2016, convicting him of murder in the second degree andcriminal possession of a weapon in the second degree (two counts), upon a jury verdict, andsentencing him to a term of imprisonment of 25 years to life on the conviction of murder in thesecond degree, to run consecutively to concurrent terms of imprisonment of 5 years imposedupon each conviction of criminal possession of a weapon in the second degree.
Ordered that the judgment is modified, on the law, by providing that the sentences imposedupon each conviction of criminal possession of a weapon in the second degree shall runconcurrently with the sentence imposed upon the conviction of murder in the second degree; asso modified, the judgment is affirmed.
The defendant was convicted, after a jury trial, of murder in the second degree and twocounts of criminal possession of a weapon in the second degree in connection with the shootingdeath of an innocent bystander who was sitting outside of a barbershop. The defendant had beenfiring shots at his intended target when one of the bullets struck the victim.
The defendant contends that the Supreme Court should not have permitted the People tointroduce into evidence, as an adoptive admission of guilt, a recording of a telephone call that hemade to his mother while he was incarcerated at Rikers Island Correctional Facility. We agree."Generally, an adoptive admission is allowed when a party acknowledges and assents tosomething already uttered by another person, which thus becomes effectively the party's ownadmission" (People v Campney, 94 NY2d 307, 311 [1999] [internal quotation marks andemphasis omitted]; see People vVining, 28 NY3d 686, 690 [2017]). Here, the People failed to establish that thedefendant assented to the statements uttered by his mother during the telephone call (seePeople v Robinson, 140 AD2d 644, 645 [1988]; cf. People v Garcia, 165 AD3d 976, 977 [2018]). However, theerror was harmless, as there was overwhelming evidence of the defendant's guilt, and nosignificant probability that the error contributed to his conviction (see People vCrimmins, 36 NY2d 230, 240-241 [1975]).
Contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel under the New York Constitution since, viewing defense counsel's performance intotality, counsel provided meaningful representation (see People v Benevento, 91 NY2d708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Moreover, the defendantwas not deprived of the effective assistance of counsel under the Federal Constitution (seeStrickland v Washington, 466 US 668 [1984]).
We agree with the defendant that the sentences imposed upon his convictions of criminalpossession of a weapon in the second degree should not run consecutively to the sentenceimposed upon his conviction of murder in the second degree. The evidence adduced at trial failedto establish that the defendant possessed the gun for an unlawful purpose unrelated to shooting atthe intended victim, resulting in the death of the victim (see Penal Law§ 265.03 [1] [b]; People vWright, 19 NY3d 359, 365 [2012]; People v Hamilton, 4 NY3d 654, 658-659 [2005]), or that hispossession of a gun was separate and distinct from his shooting of the victim (see PenalLaw § 265.03 [3]; People vRoss, 164 AD3d 528, 529 [2018]; People v Harris, 115 AD3d 761, 762-763 [2014]). Accordingly, theterms of imprisonment imposed upon the defendant's convictions of criminal possession of aweapon in the second degree should run concurrently with the sentence imposed upon hisconviction of murder in the second degree.
The sentence imposed, as modified, was not excessive (see People v Suitte, 90 AD2d80 [1982]).
The defendant's remaining contentions either are without merit or constitute harmless error.Rivera, J.P., Dillon, Roman and Duffy, JJ., concur.