PEOPLE v. ACOSTA (2018)

Judgment, Supreme Court, New York County (Abraham Clott, J.), rendered January 13, 2016, convicting defendant, after a jury trial, of two counts of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 10 years, and judgments, same court and Justice, rendered January 13, 2016, as amended March 7 and April 14, 2016, convicting defendant, upon his pleas of guilty of criminal possession of a controlled substance in the third degree, criminally using drug paraphernalia in the second degree, conspiracy in the fourth degree and criminal sale of a controlled substance in the third degree, and revoking sentences of probation imposed on two prior convictions, and sentencing him to a concurrent aggregate term of 10 years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's credibility determinations.  The evidence supports the conclusion that defendant discarded the pistol that the police recovered.  The evidence, viewed in light of the Penal Law § 265.15(4) presumption, established the unlawful intent requirement of defendant's conviction under Penal Law § 265.03(1)(b).

The prosecutor's summation remark explaining why no forensic testing was conducted on the pistol was not so egregious as to warrant reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).

Defendant's remaining challenges to the summation, and to background evidence provided by police witnesses, are unpreserved (see People v. Tevaha, 84 N.Y.2d 879, 620 N.Y.S.2d 786, 644 N.E.2d 1342 [1994] ), and we decline to review them in the interest of justice.  As an alternative holding, we likewise find no basis for reversal.  We have considered and rejected defendant's ineffective assistance of counsel claims relating to the lack of preservation (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998];  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).

We perceive no basis for reducing the sentence.