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

1384
KA 12-02110
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EARNEST HUGHES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered October 31, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second 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 second
degree (Penal Law § 265.03 [3]). Contrary to defendant’s contention,
we conclude that County Court properly refused to suppress tangible
evidence and identification testimony. Defendant lacked standing to
challenge the search of his codefendant’s residence or the seizure of
tangible evidence therefrom (see People v Sommerville, 6 AD3d 1232,
1232, lv denied 3 NY3d 648; People v Christian, 248 AD2d 960, 960, lv
denied 91 NY2d 1006). The evidence at the suppression hearing
established that the police had reasonable suspicion to detain
defendant to conduct the showup identification procedure (see People v
Evans, 34 AD3d 1301, 1302, lv denied 8 NY3d 845). In addition, the
procedure was conducted in temporal and geographic proximity to the
crime (see People v Brisco, 99 NY2d 596, 597), and it was not unduly
suggestive, despite the fact that two witnesses viewed defendant at
the same time (see People v Woodard, 83 AD3d 1440, 1441, lv denied 17
NY3d 803; People v Delarosa, 28 AD3d 1186, 1187, lv denied 7 NY3d
811).

     Defendant failed to preserve for our review his contention that
the People committed a Brady violation by failing to produce the
recording of the victim’s 911 call prior to the suppression hearing,
inasmuch as he failed to move to reopen the suppression hearing when
the recording was produced (see People v Whitted, 117 AD3d 1179, 1182,
                                 -2-                          1384
                                                         KA 12-02110

lv denied 23 NY3d 1026). Defendant’s contention that the People
committed a Rosario violation by failing to preserve a police
officer’s notes is also unpreserved because defendant did not object
to the destruction of the notes or seek a sanction (see People v
Rogelio, 79 NY2d 843, 844; People v Sanzotta, 191 AD2d 1032, 1032-
1033). We decline to exercise our power to review those contentions
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]).

     The court properly denied defendant’s request to instruct the
jury with respect to the defense of temporary innocent possession of a
firearm. Even viewing the evidence in the light most favorable to
defendant, we conclude that no reasonable view of the evidence
supports that defense (see People v McCoy, 46 AD3d 1348, 1349-1350, lv
denied 10 NY3d 813). The court also properly refused to charge the
defense of justification inasmuch as that defense does not apply to
criminal possession of a weapon (see People v Bailey, 111 AD3d 1310,
1311-1312, lv denied 23 NY3d 1018).

     The evidence, viewed in the light most favorable to the People
(see People v Contes, 60 NY2d 620, 621), is legally sufficient to
support the conviction. Viewing the evidence in light of the elements
of the crime as charged to the jury (see People v Danielson, 9 NY3d
342, 349), we conclude that the verdict is not against the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Defendant failed to establish that the prosecutor’s alleged misconduct
“caused such substantial prejudice to [him] that he has been denied
due process of law” (People v Mott, 94 AD2d 415, 419; see People v
Jacobson, 60 AD3d 1326, 1328, lv denied 12 NY3d 916). Defendant
received the minimum term of incarceration authorized by law for a
class C violent felony and, thus, that part of his sentence cannot be
considered unduly harsh or severe (see People v Barlow, 8 AD3d 1027,
1028, lv denied 3 NY3d 657). To the extent that defendant contends
that the period of postrelease supervision is unduly harsh and severe,
we decline to exercise our power to modify that part of the sentence
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [b]).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
