Opinion
2017–12712 Ind.No. 1255/16
11-04-2020
The PEOPLE, etc., respondent, v. Richard CABASSA, appellant.
Paul Skip Laisure, New York, N.Y. (Anders Nelson of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jie Gao of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Anders Nelson of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jie Gao of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Richard L. Buchter, J.), rendered November 14, 2017, convicting him of promoting prostitution in the second degree and promoting prostitution in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the defendant's adjudication as a second felony offender and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that certain remarks made by the prosecutor during the opening statement and on summation require reversal is partially unpreserved for appellate review, since the defendant either failed to object to the remarks at issue or made only a general objection, and failed to make a timely motion for a mistrial on the specific grounds he now asserts on appeal (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ; People v. Willis, 165 A.D.3d 984, 985, 85 N.Y.S.3d 230 ). In any event, the challenged remarks constituted fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to the defense summation, or permissible rhetorical comment (see People v. Rodriguez, 175 A.D.3d 721, 722, 105 N.Y.S.3d 307 ; People v. Carter, 152 A.D.3d 786, 56 N.Y.S.3d 471 ), and were not so egregious as to deprive the defendant of a fair trial (see People v. Johnson, 159 A.D.3d 833, 835, 72 N.Y.S.3d 536 ).
The defendant's contention that his prior federal conviction of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(l) did not qualify as a predicate New York felony pursuant to Penal Law § 70.06 is unpreserved for appellate review (see People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ). However, we reach the issue in the exercise of our interest of justice jurisdiction (see People v. Casey, 82 A.D.3d 1005, 918 N.Y.S.2d 727 ).
"An out-of-state felony conviction qualifies as a predicate felony under Penal Law § 70.06 only if it is for a crime whose elements are equivalent to those of a felony in New York" ( People v. Vasquez, 173 A.D.3d 1073, 1074, 100 N.Y.S.3d 887 ; see People v. Yusuf, 19 N.Y.3d 314, 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 ). Here, the defendant's predicate crime does not require as one of its elements that the firearm be operable (see 18 U.S.C. § 922 [g][1]; People v. Lawrence, 17 A.D.3d 697, 698–699, 794 N.Y.S.2d 118 ) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing (see People v. Longshore, 86 N.Y.2d 851, 852, 633 N.Y.S.2d 475, 657 N.E.2d 496 ).
Accordingly, we modify the judgment by vacating the defendant's adjudication as a second felony offender and the sentence imposed thereon, and we remit the matter to the Supreme Court, Queens County, for resentencing.
SCHEINKMAN, P.J., DILLON, AUSTIN and MILLER, JJ., concur.