        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

412
KA 06-02304
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY J. JOHNSON, DEFENDANT-APPELLANT.


KRISTIN F. SPLAIN, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J.
CZAPRANSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered March 30, 2006. The judgment convicted defendant, upon
a jury verdict, of criminal possession of a weapon in the third
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a weapon in the third
degree (Penal Law § 265.02 [former (4)]). Contrary to defendant’s
contention, the evidence is legally sufficient to support the
conviction (see generally People v Bleakley, 69 NY2d 490, 495).
Defendant was charged as an accomplice (see § 20.00) and, viewing the
evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), we conclude that the evidence is legally
sufficient to establish that defendant jointly possessed his
codefendant’s loaded firearm (see People v Velasquez, 44 AD3d 412,
412, lv denied 9 NY3d 1040). According to the evidence presented at
trial, just prior to the shooting defendant was driving a moped on
which the codefendant was a passenger. Immediately before the
codefendant fired a shot or shots toward a vehicle, defendant stopped
the moped. It may therefore be inferred that defendant was aware that
the codefendant had a loaded firearm, and that he aided the
codefendant in that possession inasmuch as he stopped the moped in
order for the codefendant to be able to line up his target and fire.
In addition, defendant’s actions after the shooting further show that
he intentionally aided the codefendant in his possession of the loaded
firearm. Defendant sped away from the scene of the shooting, swerving
past a police vehicle in the process. He ignored the officer’s
efforts to stop the moped. Indeed, he drove onto the sidewalk, cut
through a parking lot, and tried to maneuver around the police
                                 -2-                           412
                                                         KA 06-02304

vehicles when the police attempted to block him. We therefore
conclude that “defendant’s conduct showed that he was aware that his
codefendant possessed a handgun” and that he intentionally aided the
codefendant in that possession (People v Santiago, 199 AD2d 290, 290,
lv denied 82 NY2d 930; see People v Carney, 18 AD3d 242, 243, lv
denied 5 NY3d 882).

     Inasmuch as the evidence at trial is legally sufficient,
defendant’s challenge to the sufficiency of the evidence before the
grand jury is not reviewable on this appeal from the ensuing judgment
of conviction (see People v McCullough, 83 AD3d 1438, 1439, lv denied
17 NY3d 798; People v Laws, 41 AD3d 1205, 1206, lv denied 9 NY3d 991).
Defendant failed to preserve for our review his further contention
that his right of confrontation was violated at the predicate felony
offender hearing at sentencing (see People v Dennis, 91 AD3d 1277,
1278; People v McMillon, 77 AD3d 1375, 1375-1376, lv denied 16 NY3d
897). In any event, contrary to defendant’s contention, the right of
confrontation set forth in Crawford v Washington (541 US 36) “does not
apply at sentencing proceedings” (People v Leon, 10 NY3d 122, 126,
cert denied 554 US 926). Finally, the sentence is not unduly harsh or
severe.




Entered:   April 20, 2012                      Frances E. Cafarell
                                               Clerk of the Court
