Opinion
549 KA 15–01196
06-07-2019
The PEOPLE of the State of New York, Respondent, v. Brandon WEST, Defendant–appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Defendant correctly concedes that he failed to preserve for our review his further contention that the prosecutor's reference to a codefendant's statement violated the Confrontation Clause (see People v. Dennis, 91 A.D.3d 1277, 1278, 937 N.Y.S.2d 496 [4th Dept. 2012], lv denied 19 N.Y.3d 995, 951 N.Y.S.2d 472, 975 N.E.2d 918 [2012] ). In any event, that contention lacks merit. Although the statement was testimonial, it was not offered for the truth of the matters asserted therein, but was instead offered to provide context for defendant's response to that statement (see People v. Lewis, 11 A.D.3d 954, 955, 782 N.Y.S.2d 321 [4th Dept. 2004], lv denied 3 N.Y.3d 758, 788 N.Y.S.2d 675, 821 N.E.2d 980 [2004] ; see generally People v. Garcia, 25 N.Y.3d 77, 85–86, 7 N.Y.S.3d 246, 30 N.E.3d 137 [2015] ). Contrary to defendant's contention, defense counsel was not ineffective in failing to object to the reference to the codefendant's statement because any such objection would have had "little or no chance of success" ( People v. Harris, 147 A.D.3d 1328, 1330, 47 N.Y.S.3d 528 [4th Dept. 2017] [internal quotation marks omitted] ).
The sentence is not unduly harsh or severe. We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.