People v. Johnson

• Decision Date: 18 May 1995
• Citation: 215 A.D.2d 258,626 N.Y.S.2d 775
• Parties: The PEOPLE of the State of New York, Respondent, v. Kaheem JOHNSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 775

626 N.Y.S.2d 775

215 A.D.2d 258

The PEOPLE of the State of New York, Respondent, v. Kaheem JOHNSON, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 18, 1995.

G.H. Mansfield, for respondent.

D.E. Courselle, for defendant-appellant.

Before SULLIVAN, J.P., and RUBIN, ASCH, NARDELLI and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered February 19, 1993, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of 6 years to life, unanimously affirmed.

Evidence that the arresting officer "knew" defendant was properly admitted since defendant vigorously challenged the identification made by the officer (cf., People v. Hendricks, 205 A.D.2d 333, 613 N.Y.S.2d 166, lv. denied 84 N.Y.2d 826, 617 N.Y.S.2d 147, 641 N.E.2d 168), and the trial court's prompt instruction to the jury to disregard the officer's testimony that he knew defendant because he had "arrested him several times before" was sufficient to dispel any prejudice inherent in such testimony (see, People v. Baez, 208 A.D.2d 638, 617 N.Y.S.2d 203, lv. denied 84 N.Y.2d 1028, 623 N.Y.S.2d 184, 647 N.E.2d 456).

Notwithstanding the People's failure to timely appeal the original sentence, defendant was properly resentenced pursuant to CPL 440.40, where his previously imposed sentence of 3 1/2 to 7 years was invalid as a matter of law (Penal Law § 70.08[2], [3][c], and the record belies defendant's claim that the issue of whether persistent violent sentencing was mandatory under the statute was resolved "on the merits" by the sentencing court (cf., People v. Frangiamone, 99 A.D.2d 842, 472 N.Y.S.2d 447).