Opinion
December 27, 2000.
Appeal from Judgment of Monroe County Court, Sirkin, J. — Criminal Possession Weapon, 2nd Degree.
PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE AND LAWTON, JJ.
Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following
Memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03) and two counts of criminal use of a firearm in the second degree (Penal Law § 265.08, [2]). He was sentenced as a persistent felony offender to concurrent indeterminate terms of incarceration of 25 years to life on each count. Defendant contends that the evidence is legally insufficient to support the conviction and the verdict is against the weight of the evidence; that County Court committed numerous errors during the course of the proceedings that deprived defendant of a fair trial; that the verdict is repugnant or inconsistent; that the sentence is unduly harsh and severe; and that the court erred in denying his CPL 440.10 motion to vacate the judgment of conviction on the ground of newly discovered evidence.
The evidence is legally sufficient to support the conviction and the verdict is not against the weight of the evidence. A police officer testified that he observed defendant remove a silver revolver from a vehicle parked outside a bar in the City of Rochester, that he followed defendant as he walked toward the bar, and that he heard a gunshot coming from the area where he saw defendant standing near the bar. There is a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the jury ( see, People v. Bleakley, 69 N.Y.2d 490, 495). The jury did not fail to give the evidence the weight it should be accorded ( see, People v. Bleakley, supra, at 495).
The court properly denied the motion of defendant to suppress his statement to the police. In any event, the issue is moot because the People did not use the statement at trial. The court's Sandoval ruling was a proper exercise of the court's discretion ( see, People v. Walker, 83 N.Y.2d 455, 459). The court also properly determined that defendant was not denied his constitutional right to a speedy trial ( see, People v. Taranovich, 37 N.Y.2d 442, 445-446; People v. McKenzie, 212 A.D.2d 641, lv denied 85 N.Y.2d 976). The court did not abuse its discretion in allowing the prosecutor, on redirect examination, to elicit testimony from a prosecution witness concerning admissions that defendant made to her ( see, People v. Melendez, 55 N.Y.2d 445, 451; People v. Violante, 144 A.D.2d 995, 996, lv denied 73 N.Y.2d 897).
Defendant's contention that the verdict is repugnant or inconsistent is not preserved for our review because defendant failed to object to the verdict before the jury was discharged ( see, People v. Alfaro, 66 N.Y.2d 985, 987; People v. Aponte, 194 A.D.2d 315, lv denied 82 N.Y.2d 713).
Defendant further contends that, in light of his conviction of criminal possession of a weapon in the second degree (Penal Law 265.03), his conviction of the noninclusory concurrent counts of criminal use of a firearm in the second degree (Penal Law § 265.08, [2]) should be reversed. We agree ( see, People v. Brown, 67 N.Y.2d 555, 560-561, cert denied 479 U.S. 1093; People v Dunbar, 275 A.D.2d 968 [decided Sept. 29, 2000]; People v. Serrano, 119 Misc.2d 321). Although defendant's contention is not preserved for our review, we modify the judgment as a matter of discretion in the interest of justice by reversing defendant's conviction of criminal use of a firearm in the second degree under the third and fourth counts of the indictment, vacating the sentences imposed thereon and dismissing those counts of the indictment.
Defendant was properly adjudicated a persistent felony offender. "[T]he history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest" (CPL 400.20 [b]). For the same reason, the sentence is neither unduly harsh nor severe ( see, People v. Young, 255 A.D.2d 907, 90 8, affd 94 N.Y.2d 171, rearg denied 94 N.Y.2d 876; see also, People v. Virgil, 269 A.D.2d 850, lv denied 95 N.Y.2d 806).
Finally, the court properly denied defendant `s CPL 440.10 motion to vacate the judgment of conviction on the ground of newly discovered evidence. Defendant failed to demonstrate that the evidence was "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" (CPL 440.10 [g]; see, People v Maddox, 256 A.D.2d 1068, lv denied 93 N.Y.2d 875).