The People of the State of New York, Respondent, v. Angel Rodriguez, Defendant–Appellant.  Ind. No. (2021)

Case No.2018–2404

2018–02685

Robert S. Dean, Center for Appellate Litigation, New York (Allison Haupt of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.

Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered March 7, 2018, as amended May 3, 2018 and October 15, 2019, 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 concurrent terms of eight years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007] ).  There is no basis for disturbing the jury's credibility determinations.  Defendant's attacks on the testimony of the People's multiple witnesses are unpersuasive.

Defendant did not preserve his claim that the People improperly elicited and commented on his refusal to give the police certain clothing he was wearing at the time of his arrest, and we decline to review it in the interest of justice.  Furthermore, because defendant did not raise the issue at trial, he did not create a sufficient factual record (see People v. Kinchen, 60 N.Y.2d 772, 773–774 [1983] ) to determine whether this was actually a comment on his exercise of his right to withhold consent to an otherwise unlawful seizure.  As an alternative holding, we find no basis from the existing record to conclude that the challenged testimony and comment violated any constitutional right, and we also find that any error was harmless (see People v. Crimmins, 36 N.Y.2d 230 [1975] ).  Similarly, on the existing record there is no basis for finding that trial counsel rendered ineffective assistance by failing to raise this issue.

We perceive no basis for reducing the sentence.