Opinion
06-14-2024
The PEOPLE of the State of New York, Respondent, v. Giorgio WILLIAMS, Defendant-Appellant.
NICHOLAS T. TEXIDO, WEST SENECA, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT. PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, GREENWOOD, AND NOWAK, JJ.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered December 18, 2020. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree and unlawful possession of marihuana.
NICHOLAS T. TEXIDO, WEST SENECA, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, BANNISTER, GREENWOOD, AND NOWAK, 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 criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and unlawful possession of marihuana (former § 221.05).
Viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the second degree 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 conclude that, although "an acquittal would not have been unreasonable" (id. at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), the verdict with respect to that crime is not 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]).
[1, 2] Defendant’s contention that he was denied a fair trial by the prosecutor’s mischaracterization of certain DNA evidence during opening statements and summation is unpreserved for our review inasmuch as defendant did not object to the alleged instances of misconduct (see People v. Watts, 218 A.D.3d 1171, 1174, 195 N.Y.S.3d 330 [4th Dept. 2023], lv denied 40 N.Y.3d 1013, 199 N.Y.S.3d 17, 222 N.E.3d 533 [2023]; People v. Graham, 171 A.D.3d 1566, 1570, 99 N.Y.S.3d 562 [4th Dept. 2019], lv denied 33 N.Y.3d 1104, 106 N.Y.S.3d 689, 130 N.E.3d 1299 [2019]). In any event, although the prosecutor may have overstated the import of the DNA evidence, any improper remarks were not so pervasive and egregious as to deny defendant a fair trial (see People v. Lively, 163 A.D.3d 1466, 1468-1469, 82 N.Y.S.3d 671 [4th Dept. 2018], lv denied 32 N.Y.3d 1065, 89 N.Y.S.3d 120, 113 N.E.3d 954 [2018]; see also People v. King, 224 A.D.3d 1313, 1314, 204 N.Y.S.3d 638 [4th Dept. 2024]). Contrary to defendant’s further contention, defense counsel’s failure to object to the prosecutor’s remarks did not deprive defendant of effective assistance of counsel (see People v. Palmer, 204 A.D.3d 1512, 1514-1515, 167 N.Y.S.3d 697 [4th Dept. 2022], lv denied 38 N.Y.3d 1190, 176 N.Y.S.3d 207, 197 N.E.3d 487 [2022]).
[3, 4] Finally, we reject defendant’s contention that his marihuana conviction is automatically vacated as a matter of law. Inasmuch as defendant was not serving a sentence of incarceration for the marihuana conviction at the time the Marihuana Regulation and Taxation Act (MRTA) became effective (see CPL 440.46-a [1]), the "proper mechanism for vacating his marihuana conviction is through the process detailed in CPL 440.46-a, which requires defendant to first ‘petition the court of conviction’ for any such relief (CPL 440.46-a [2] [a]) and is not automatic" (People v. Bennett, 210 A.D.3d 1421, 1423, 178 N.Y.S.3d 342 [4th Dept. 2022]; see People v. Gamlen, 222 A.D.3d 1440, 1441, 200 N.Y.S.3d 260 [4th Dept. 2023], lv denied 41 N.Y.3d 965, 208 N.Y.S.3d 542, 232 N.E.3d 220 [2024]). Defendant has not petitioned the court of conviction for vacatur, and his contention is not properly before us on direct appeal from the judgment of conviction (see People v. Hall, 202 A.D.3d 1485, 1486, 162 N.Y.S.3d 627 [4th Dept. 2022], lv denied 38 N.Y.3d 1134, 172 N.Y.S.3d 852, 193 N.E.3d 517 [2022]).