People v. Locenitt

• Citation: 157 A.D.3d 905,66 N.Y.S.3d 908 (Mem)
• Decision Date: 24 January 2018
• Docket Number: 2013–07440,Ind. No. 8956/10
• Parties: The PEOPLE, etc., respondent, v. Kiaza LOCENITT, appellant.
• Court: New York Supreme Court Appellate Division

157 A.D.3d 905
66 N.Y.S.3d 908 (Mem)

The PEOPLE, etc., respondent,
v.
Kiaza LOCENITT, appellant.

2013–07440
Ind. No. 8956/10

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

Argued—November 17, 2017
January 24, 2018

Paul Skip Laisure, New York, N.Y. (Melissa S. Horlick of counsel), for appellant, and appellant pro se.

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

66 N.Y.S.3d 909

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

157 A.D.3d 905

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), rendered June 25, 2013, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing

157 A.D.3d 906

him, as a persistent felony offender, to an indeterminate term of imprisonment of 25 years to life, and a fine in the sum of $5,000. The appeal brings up for review the denial (Guy J. Mangano, Jr., J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating so much of the sentence as imposed a fine in the sum of $5,000; as so modified, the judgment is affirmed.

The defendant's contention that certain identification testimony should have been suppressed because the process of assembling and presenting a particular photo array to the complainant was unduly suggestive is unpreserved for appellate review (see CPL 470.05[2] ; People v. Moshier, 110 A.D.3d 832, 832, 972 N.Y.S.2d 675 ). In any event, his contention is without merit (see People v. Moshier, 110 A.D.3d at 832, 972 N.Y.S.2d 675 ).

The defendant's contention that the trial court erred in excusing, sua sponte, two prospective jurors is partially unpreserved for appellate review, as he objected to the excusal of only one prospective juror (see CPL 470.05[2] ; People v. Cunningham, 119 A.D.3d 601, 601, 988 N.Y.S.2d 696 ; People v. Toussaint, 40 A.D.3d 1017, 1017–1018, 837 N.Y.S.2d 218 ). In any event, the defendant's contention is without merit since both prospective jurors indicated their unwillingness or inability to follow the trial court's instructions. The trial court, therefore, providently exercised its discretion in excusing them sua sponte (see People v. Cunningham, 119 A.D.3d at 602, 988 N.Y.S.2d 696 ; People v. Anderson, 48 A.D.3d 825, 826, 851 N.Y.S.2d 370 ; People v. James, 47 A.D.3d 947, 948, 849 N.Y.S.2d 670 ).

The defendant's contention that the People failed to adduce legally sufficient evidence to prove his guilt beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a weapon in the second degree under Penal Law § 265.03(3) (see People v. Rivera, 152 A.D.3d 625, 58 N.Y.S.3d 542 ; People v. Pringle, 136 A.D.3d 1061, 1061–1062, 25 N.Y.S.3d 635 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant's contention that the use of certain identification testimony during trial constituted improper bolstering is

157 A.D.3d 907

unpreserved for appellate review (see CPL 470.05[2] ; People v. Bonilla, 151 A.D.3d 735, 58 N.Y.S.3d 48 ) and, in any event, without merit. Moreover, the complainant was sufficiently familiar with the defendant that her identification of him in the photo array was merely confirmatory (see

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