Opinion
2014-03-26
The PEOPLE, etc., respondent, v. Bobby PRESSLEY, appellant.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Eunice Y. Lee of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Thomas M. Ross, and Eunice Y. Lee of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered November 11, 2011, convicting him of criminal possession of a weapon in the second degree and criminal solicitation in the second degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 15 years followed by a 5–year period of postrelease supervision on the conviction of criminal possession of a weapon in the second degree and an indeterminate term of imprisonment of 2 1/3 to 7 years on the conviction of criminal solicitation in the second degree, with the terms of imprisonment to run consecutively to each other.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the sentences shall run concurrently with each other; as so modified, the judgment is affirmed.
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence as to the count of criminal possession of a weapon in the second degree ( seeCPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492–493, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish, beyond a reasonable doubt, the defendant's guilt of the crime of criminal possession of a weapon in the second degree, under an acting-in-concert theory ( see People v. Johnson, 94 A.D.3d 1408, 1409, 942 N.Y.S.2d 302;People v. Christie, 55 A.D.3d 341, 864 N.Y.S.2d 424; People v. Martinez, 8 A.D.3d 8, 777 N.Y.S.2d 488).
The defendant contends that the Supreme Court's procedure for handling certain jury notes violated the procedure set forth by the Court of Appeals in People v. O'Rama, 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189. To the extent that certain of the jury notes requested read-backs of testimony, read-backs of charges, or the viewing of exhibits, the defendant's contention is unpreserved for appellate review, and the alleged error did not constitute a mode of proceedings error which would obviate the preservation requirement ( see People v. Alcide, 21 N.Y.3d 687, 976 N.Y.S.2d 432, 998 N.E.2d 1056;People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387;People v. Lockley, 84 A.D.3d 836, 922 N.Y.S.2d 476;People v. Bryant, 82 A.D.3d 1114, 919 N.Y.S.2d 341;cf. People v. Gadson, 110 A.D.3d 1098, 973 N.Y.S.2d 768). With respect to two of the notes, wherein the jury sought clarification as to points of law, rather than a mere read-back of the jury charge, the court fulfilled its “core responsibilities” under CPL 310.30 ( see People v. Kadarko, 14 N.Y.3d 426, 902 N.Y.S.2d 828, 928 N.E.2d 1025;People v. Woodrow, 89 A.D.3d 1158, 932 N.Y.S.2d 236).
The sentence was excessive to the extent indicated herein ( see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675). BALKIN, J.P., SGROI, COHEN and LASALLE, JJ., concur.