People v Bodden

People v Bodden 2011 NY Slip Op 09527 Decided on December 27, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 27, 2011
Catterson, J.P., Richter, Manzanet-Daniels, Román, JJ.
5718 311/09

[*1]The People of the State of New York, Respondent,

v

Roy Bodden, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Carl S. Kaplan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin
of counsel), for respondent.

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered March 4, 2010, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, criminal possession of a controlled substance in the fifth degree and criminally using drug paraphernalia in the second degree, and sentencing him to an aggregate term of 9½ years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the prison term for the second-degree weapon possession conviction to 5½ years and the prison term for the third-degree weapon possession conviction to 1½-4½ years, resulting in a new aggregate prison term of 5½ years, and otherwise affirmed.

Defendant did not preserve his claim that his weapon convictions were based on legally insufficient evidence, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. We also reject defendant's claim that these convictions were against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. Defendant's defense of temporary lawful possession was based entirely on his own testimony, which the jury was entitled to discredit.

We find the sentence excessive to the extent indicated.

Defendant's constitutional argument is unpreserved (see People v Ianelli, 69 NY2d 684 [1986], cert denied 482 US 914 [1987]), and we reject defendant's argument to the contrary (see e.g. People v Rivera, 33 AD3d 450, 451 [2006], lv denied 7 NY3d 928 [2006]). We decline to review this claim in the interest of
justice. As an alternative holding, we also reject it on the merits. The Decision and Order of this Court entered herein on October [*2]13, 2011 is hereby recalled and vacated (see M-5193 decided simultaneously herewith).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 27, 2011

CLERK