Opinion
2012-09-28
The PEOPLE of the State of New York, Respondent, v. Lamont D. WILLIAMS, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Liam A. Dwyer of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Liam A. Dwyer of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.
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[1][b]; [3] ), and one count each of menacing a police officer (§ 120.18) and loitering (§ 240.35[2] ). Defendant failed to preserve for our review his contention that the conviction of one of the two counts of criminal possession of a weapon and the conviction of menacing a police officer are not supported by legally sufficient evidence ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, in any event, that contention lacks merit. Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that there is legally sufficient evidence to establish that defendant intended to use the revolver unlawfully against another ( see§ 265.03[1][b]; see generally People v. Hunter, 46 A.D.3d 1417, 1417, 848 N.Y.S.2d 480,lv. denied10 N.Y.3d 812, 857 N.Y.S.2d 45, 886 N.E.2d 810) and intended to place the officers in reasonable fear of physical injury, serious physical injury or death ( see§ 120.18; People v. McCottery, 90 A.D.3d 1323, 1324–1325, 935 N.Y.S.2d 687). The officerstestified that defendant was ordered to drop his weapon and refused to comply, and that defendant pointed the gun or waved the gun at the officers as they pursued him. Viewing the evidence in light of the elements of the crimes of criminal possession of a weapon in the second degree and menacing a police officer 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), we reject defendant's further contention that the verdict with respect to those three counts 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).
Defendant's further contention that he was denied a fair trial by prosecutorial misconduct is not preserved for our review ( see People v. Thomas, 96 A.D.3d 1670, 1673, 949 N.Y.S.2d 545) and, in any event, is without merit. Although defendant is correct that the prosecutor improperly cross-examined a defense witness regarding whether he had been arrested and the grounds for those arrests ( see People v. Morrice, 61 A.D.3d 1390, 1391–1392, 877 N.Y.S.2d 547), that one instance of prosecutorial misconduct was not so egregious as to deprive defendant of a fair trial ( see People v. Szyzskowski, 89 A.D.3d 1501, 1503, 933 N.Y.S.2d 497). We reject defendant's contention that the prosecutor engaged in misconduct during her summation inasmuch as the comments in question were fair response to the summation of defense counsel ( see People v. Rivers, 82 A.D.3d 1623, 1624, 918 N.Y.S.2d 921,lv. denied17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163;People v. Cunningham, 12 A.D.3d 1131, 1132, 785 N.Y.S.2d 244,lv. denied4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677,reconsideration denied5 N.Y.3d 761, 801 N.Y.S.2d 255, 834 N.E.2d 1265). We reject defendant's further contention that he was denied effective assistance of counsel based on the failure of defense counsel to object to the alleged instances of prosecutorial misconduct ( see People v. Tolliver, 93 A.D.3d 1150, 1151, 940 N.Y.S.2d 398,lv. denied19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218;see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Finally, defendant contends that County Court failed to comply with CPL 270.35 in discharging a sworn juror, requiring reversal. Defendant, however, consented to the discharge of that juror and therefore has waived that contention ( see People v. Barner, 30 A.D.3d 1091, 1092, 815 N.Y.S.2d 862,lv. denied7 N.Y.3d 809, 822 N.Y.S.2d 484, 855 N.E.2d 800;see also People v. Davis, 83 A.D.3d 860, 861, 920 N.Y.S.2d 678).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.