People v. Alvarez

• Decision Date: 28 September 2010
• Citation: 908 N.Y.S.2d 249,76 A.D.3d 1098
• Parties: The PEOPLE, etc., respondent, v. Luis ALVAREZ, appellant.
• Court: New York Supreme Court — Appellate Division

908 N.Y.S.2d 249

76 A.D.3d 1098

The PEOPLE, etc., respondent,

v.Luis ALVAREZ, appellant.

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

Sept. 28, 2010.

Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Danielle Hartman of counsel), for respondent.

STEVEN W. FISHER, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and ARIEL E. BELEN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered September 4, 2008, convicting him of criminal possessionof a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), and criminal possession of a weapon in the fourth degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, on the facts, and as a matter of discretion in the interest of justice, by (1) vacating the convictions of criminal possession of a weapon in the fourth degree, vacating the sentences imposed thereupon, and dismissing those counts of the indictment, and (2) vacating the sentences imposed on the convictions of criminal possession of a weapon in the second degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing on the convictions of criminal possession of a weapon in the second degree.

The defendant's claim that the Supreme Court deprived him of his right to a public trial is unpreserved for appellate review ( see People v. Vatansever, 5 A.D.3d 406, 407, 771 N.Y.S.2d 910). In any event, the defendant's contention is without merit ( see Presley v. Georgia, --- U.S. ----, 130 S.Ct. 721, ---L.Ed.2d ----; People v. Colon, 71 N.Y.2d 410, 526 N.Y.S.2d 932, 521 N.E.2d 1075, cert. denied 487 U.S. 1239, 108 S.Ct. 2911, 101 L.Ed.2d 943; People v. Gibbons, 18 A.D.3d 773, 773, 795 N.Y.S.2d 700; People v. Mojica, 279 A.D.2d 591, 591-592, 719 N.Y.S.2d 608).

The defendant did not preserve for appellate review his claim that the People failed to present legally sufficient evidence to sustain his convictions of two counts of criminal possession of aweapon in the fourth degree. However, we elect to reach the issue in the exercise of our interest of justice jurisdiction ( see CPL 470.15), and vacate the convictions of criminal possession of a weapon in the fourth degree ( see Penal Law § 265.01[1], [2] ), and the sentences imposed thereon. The People presented no evidence at trial that the knife at issue, the defendant's possession of which formed the basis for these counts of the indictment, was an operable gravity knife ( see Penal Law § 265.00[5] ). Accordingly, the evidence was legally insufficient to sustain the defendant's conviction of both counts of criminal possession of a weapon in the fourth degree ( see Penal Law § 265.00[5], § 265.01[1], [2]; People v. Perez, 123 A.D.2d 889, 890, 507 N.Y.S.2d 666; cf. People v. Birth, 49 A.D.3d 290, 290, 853 N.Y.S.2d 317; People v. Smith, 309 A.D.2d 608, 609, 765 N.Y.S.2d 777).

Contrary to the defendant's contention, the prosecutor's comments during summation did not deprive him of a fair trial, as they were fair comments on the evidence, or were a fair response to the defendant's attack on the credibility of the prosecution witnesses ( see People v. Fortune, 70 A.D.3d 964, 893 N.Y.S.2d 880; People v. Avila, 69 A.D.3d 642, 643, 892 N.Y.S.2d 515). To the extent that certain comments made by the prosecutor in summation can be seen as impermissibly shifting the burden of proof to the defendant, the error was harmless because the evidence of the defendant's guilt of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree was overwhelming and there is no reasonable possibility that the remarks might have contributed to the defendant's conviction on those counts ( see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. McCants, 67 A.D.3d 821, 823, 888 N.Y.S.2d 200).

The defendant's contention, raised in his supplemental pro se brief, that, under Besser v. Walsh, 601 F.3d 163, the persistent violent felony offender sentencing scheme under Penal Law § 70.08 violates the principlesannounced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, is unpreserved for appellate review (see CPL 470.05[2]; People v. Mendez, 71 A.D.3d 696, 696, 894 N.Y.S.2d 902; People v. Kelly, 68 A.D.3d 895, 896, 889 N.Y.S.2d 491; People v. Wells, 63 A.D.3d 967, 969, 882 N.Y.S.2d 150; People v. Mitchell, 59 A.D.3d 739, 741, 874 N.Y.S.2d 226) and, in any event, is without merit (see People v. Taylor, 73 A.D.3d 1285, 900 N.Y.S.2d 784; People v. Battease, 74 A.D.3d 1571, 904 N.Y.S.2d 241; see also People v. Rawlins, 10 N.Y.3d 136, 158, 855 N.Y.S.2d 20, 884 N.E.2d 1019, cert. denied --- U.S. ----, 129 S.Ct. 2856, 174 L.Ed.2d 601; People v. Rivera, 5...