Opinion
2011-10-13
The PEOPLE of the State of New York, Respondent,v.Roy BODDEN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered March 4, 2010, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, criminal possession of a controlled substance in the fifth degree and criminally using drug paraphernalia in the second degree, and sentencing him to an aggregate term of 9 1/2 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the prison term for the second-degree weapon possession conviction to 5 1/2 years, resulting in new an aggregate prison term of 5 1/2 years, and otherwise affirmed.
Defendant did not preserve his claim that his weapon convictions were based on legally insufficient evidence, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. We also reject defendant's claim that these convictions were against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations. Defendant's defense of temporary lawful possession was based entirely on his own testimony, which the jury was entitled to discredit.
We find the sentence excessive to the extent indicated.
Defendant's constitutional argument is unpreserved ( see People v. Ianelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16, 504 N.E.2d 383 [1986], cert. denied 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 673 [1987] ), and we reject defendant's argument to the contrary ( see e.g. People v. Rivera, 33 A.D.3d 450, 451, 823 N.Y.S.2d 14 [2006], lv. denied 7 N.Y.3d 928, 827 N.Y.S.2d 697, 860 N.E.2d 999 [2006] ). We decline to review this claim in the interest of justice. As an alternative holding, we also reject it on the merits.
CATTERSON, J.P., RICHTER, MANZANET–DANIELS, ROMÁN, JJ., concur.