People v Gilliens (John)

[*1] People v Gilliens (John) 2009 NY Slip Op 51933(U) [24 Misc 3d 146(A)] Decided on September 11, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 11, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570060/08.

The People of the State of New York, Respondent,

against

John Gilliens, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Dena E. Douglas, J.), rendered January 2, 2008, after a jury trial, convicting him of criminal possession of a weapon in the fourth degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Dena E. Douglas, J.), rendered January 2, 2008, affirmed.

Defendant's claim regarding the alleged repugnancy
of the verdict is unpreserved (see People v Furman, 224 AD2d 188 [1996], lv denied 88 NY2d 878 [1996]), and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The menacing charge of which defendant was acquitted contains intent elements not material to the weapons possession charge of which he was convicted. Thus, defendant's acquittal of the menacing charge did not negate any essential element of the weapons possession charge (see People v James, 249 AD2d 919 [1998], lv denied 92 NY2d 899 [1998]; see generally People v Tucker, 55 NY2d l [1981], rearg denied 55 NY2d 1039 [1982]).

Under the circumstances of this case, any error in permitting the receipt of testimony as to uncharged crimes was harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230 [1975]). Defendant's claim that the court should have provided a limiting instruction is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find no basis for reversal.

Finally, we reject defendant's alternative claim that he was denied effective assistance of counsel (see People v Baldi, 54 NY2d 137 [1981]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: September 11, 2009