People v. Hines

159 A.D.3d 832

69 N.Y.S.3d 816 (Mem)

The PEOPLE, etc., respondent,

v.Thomas HINES, appellant.

2011–03918

Ind. No. 7934/09

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 2, 2017

March 14, 2018

Law Office of Stephen N. Preziosi P.C., New York, NY, for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (James P. Sullivan, J.), rendered April 20, 2011, convicting him of attempted assault in the first degree and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the verdict of guilty was against the weight of the evidence. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Upon reviewing the record here, we are satisfied that the defendant's convictions were not against the weight of the evidence.

The defendant's contention that the counts of criminal possession of a weapon in the second degree were multiplicitous is unpreserved for appellate review (see CPL 470.05[2] ; People v. Bonilla, 151 A.D.3d 735, 737, 58 N.Y.S.3d 48 ; People v. Wall, 92 A.D.3d 812, 813, 938 N.Y.S.2d 449 ) and, in any event, without merit (see People v. Saunders, 290 A.D.2d 461, 463, 736 N.Y.S.2d 90 ).

By affirmatively agreeing to reorder the first two counts of the indictment on the verdict sheet, the defendant waived his right to challenge the same (see People v. Richardson, 88 N.Y.2d 1049, 1051, 650 N.Y.S.2d 633, 673 N.E.2d 918 ; People v. McCoy, 100 A.D.3d 1422, 1423, 953 N.Y.S.2d 788 ). The defendant's additional contention that the Supreme Court improvidently exercised its discretion in failing to submit those two counts in the alternative is unpreserved for appellate review (see CPL 470.05[2] ; People v. Carter, 7 N.Y.3d 875, 876, 826 N.Y.S.2d 588, 860 N.E.2d 50 ), and, in any event, without merit as the indictment did not charge the first two counts in the alternative.

The defendant's objection to the Supreme Court's taking of the sworn testimony of a particular witness who may have had a mental defect is unpreserved for appellate review (see CPL 470.05[2] ; People v. Thompson, 119 A.D.3d 966, 967, 989 N.Y.S.2d 881 ; People v. Batista, 92 A.D.3d 793, 938 N.Y.S.2d 479 ; People v. Gillard, 7 A.D.3d 540, 541, 776 N.Y.S.2d 95 ). In any event, the witness's sworn testimony was properly admitted after a sufficient inquiry by the court in which the witness sufficiently established that he understood the nature of an oath, the difference between the truth and a lie, and that he could be punished for lying to the court (see CPL 60.20[2] ; Wheeler v. United States, 159 U.S. 523, 524–525, 16 S.Ct. 93, 40 L.Ed. 244 ; People v. Parks, 41 N.Y.2d 36, 45, 390 N.Y.S.2d 848, 359 N.E.2d 358 ; Matter of David S., 6 A.D.3d 539, 540, 775 N.Y.S.2d 353 ; People v. Brill, 245 A.D.2d 384, 385, 666 N.Y.S.2d 195 ). Furthermore, on this record, the witness could properly have been permitted to testify as an unsworn witness (see CPL 60.20 [2] ), because his testimony was sufficiently corroborated by other evidence (see People v. Groff, 71 N.Y.2d 101, 109–110, 524 N.Y.S.2d 13, 518 N.E.2d 908 ; People v. Schnoor, 95 A.D.3d 1144, 1144–1145, 943 N.Y.S.2d 894 ; People v. Mendoza, 49 A.D.3d 559, 560, 853 N.Y.S.2d 364 ). Thus, even if permitting the witness to testify under oath had constituted error, it would not require reversal (see People v. Mendoza, 49 A.D.3d at 560, 853 N.Y.S.2d 364 ; People v. McIver, 15 A.D.3d 677, 678, 791 N.Y.S.2d 587 ; People v. Morey, 224 A.D.2d 730, 731–732, 637 N.Y.S.2d 500 ).

The defendant's contention that he received...