PEOPLE v. HERNANDEZ (2004)

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

The PEOPLE of the State of New York, Respondent, v. Jonathan HERNANDEZ, Defendant-Appellant.

Decided: October 21, 2004

BUCKLEY, P.J., MAZZARELLI, ANDRIAS, MARLOW, CATTERSON, JJ.

Robert S. Dean, Center for Appellate Litigation, New York (Lyssa M. Sampson of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Karen Swiger of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), rendered July 10, 2002, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him to a term of 10 years, unanimously affirmed.

Defendant did not preserve his claim that the court should have charged the jury that the testifying codefendant's guilty plea in the instant matter could not be used as evidence of defendant's guilt, and we decline to review it in the interest of justice. Were we to review this claim, we would find that any error was harmless in view of the overwhelming evidence of defendant's guilt (see People v. Weinberg, 183 A.D.2d 932, 934, 586 N.Y.S.2d 132 [1992], lv. denied 80 N.Y.2d 977, 591 N.Y.S.2d 147, 605 N.E.2d 883 [1992] ).

We perceive no basis for reducing the sentence.

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