| People v Harriott |
| 2020 NY Slip Op 02038 [181 AD3d 863] |
| March 25, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Antonio Harriott, Appellant. |
Philip H. Schnabel, Chester, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County(William L. DeProspo, J.), rendered June 7, 2018, convicting him of criminal possessionof a weapon in the second degree, upon a jury verdict, and sentencing him to adeterminate term of imprisonment of 13 years, to be followed by 5 years of postreleasesupervision.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentence imposed from a determinate term of imprisonment of 13years, to be followed by 5 years of postrelease supervision, to a determinate term ofimprisonment of 10 years, to be followed by 5 years of postrelease supervision; as somodified, the judgment is affirmed.
The defendant's contention that the trial court erred in failing to provide the jury witha written copy of the elements of the crimes charged, as per the jury's request, isunpreserved for appellate review (see CPL 470.05 [2]). Defense counsel wasmade aware of the contents of the jury note. Counsel not only did not object to the court'sproposed response that it would only provide the jury with an oral re-reading of theelements of the crimes charged (see People v Mack, 27 NY3d 534, 537 [2016]), counselopposed providing the written copy. Thus, the defendant's contention is without merit.After learning of the jury's request, defense counsel took the position that the jury was"not entitled to the copy of the charges." "[I]t is impermissible for a court on its owninitiative to distribute written excerpts of its charge to the jury over [the] defendant'sobjection" (People v Martell, 91 NY2d 782, 785-786 [1998]). Moreover, thecourt's response to the jury note was meaningful (see People v Santi, 3 NY3d 234, 249 [2004]), and thedefendant suffered no discernable prejudice from the court's handling of the note (see People v Battle, 15 AD3d413, 414 [2005]).
The defendant's contention that the trial court improperly denied his request tocharge criminal possession of a weapon in the fourth degree (Penal Law§ 265.01 [1]) as a lesser included offense of criminal possession of aweapon in the second degree (Penal Law § 265.03 [3]) is also withoutmerit. Although criminal possession of a weapon in the fourth degree is a lesser includedoffense of criminal possession of a weapon in the second degree, there was no reasonableview of the evidence that the defendant committed the lesser, but not the greater, offense(see People v Melendez, 71AD3d 1166, 1167 [2010]; People v Laing, 66 AD3d 1353, 1355 [2009]).
The defendant's contention that the People improperly failed to conduct a forensicexamination of his hands and clothing to determine whether he fired a weapon isunpreserved for appellate review (see CPL 470.05 [2]) and, in any event, withoutmerit.
The sentence imposed was excessive to the extent indicated herein (see People vSuitte, 90 AD2d 80 [1982]). Mastro, J.P., Chambers, Maltese and Christopher, JJ.,concur.