PEOPLE v. FRANKLIN (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered April 16, 2019, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 4 years, to be followed by 21/212 years of postrelease supervision.  By decision and order dated July 6, 2022, this Court reversed the judgment and ordered a new trial (see People v. Franklin, 207 A.D.3d 476, 169 N.Y.S.3d 546).  On April 25, 2024, the Court of Appeals reversed the decision and order of this Court and remitted the matter to this Court for consideration of the facts and issues raised but not determined on the appeal to this Court (see People v. Franklin, 42 N.Y.3d 157, 217 N.Y.S.3d 867, 242 N.E.3d 652).  Justice Taylor has been substituted for former Justice Zayas (see 22 NYCRR 1250.1[b]).

ORDERED that, upon remittitur from the Court of Appeals, the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of imprisonment of 4 years, to be followed by 21/212 years of postrelease supervision, to a determinate term of imprisonment of 31/212 years, to be followed by 21/212 years of postrelease supervision;  as so modified, the judgment is affirmed.

The defendant was convicted of criminal possession of a weapon in the second degree based on allegations that the police recovered a silver gun following a search of the basement of the home where he allegedly lived.

The defendant's contention that he was deprived of a fair trial as a result of comments made by the prosecutor during his opening statement, including the prosecutor's reference to a nontestifying witness, is unpreserved for appellate review (see CPL 470.05[2];  People v. Ahmed, 173 A.D.3d 1058, 1059, 100 N.Y.S.3d 876).  In any event, the defendant's contention is without merit (see People v. Bramble, 81 A.D.3d 968, 968, 917 N.Y.S.2d 297).  “Absent bad faith or undue prejudice, a trial will not be undone by a prosecutor's failure to prove every statement made in his or her opening statement” (People v. Ahmed, 173 A.D.3d at 1059, 100 N.Y.S.3d 876, citing People v. De Tore, 34 N.Y.2d 199, 207, 356 N.Y.S.2d 598, 313 N.E.2d 61;  see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. McKnight, 72 A.D.3d 846, 846–847, 898 N.Y.S.2d 462, affd 16 N.Y.3d 43, 917 N.Y.S.2d 594, 942 N.E.2d 1019).  Here, the record does not support the defendant's contention that the prosecutor acted in bad faith (see People v. Duchi, 176 A.D.3d 968, 969, 108 N.Y.S.3d 355;  People v. Carmichael, 170 A.D.3d 742, 743, 95 N.Y.S.3d 271;  People v. Bramble, 81 A.D.3d at 968–969, 917 N.Y.S.2d 297).  The comments made by the prosecutor during his opening statement primarily described what the People intended to prove and properly prepared the jury to resolve the factual issues at the trial (see People v. Ahmed, 173 A.D.3d at 1059, 100 N.Y.S.3d 876;  People v. Warden, 166 A.D.3d 817, 819, 87 N.Y.S.3d 307;  People v. Bonds, 118 A.D.3d 717, 719, 987 N.Y.S.2d 428).  Moreover, any prejudice to the defendant was minimized by the Supreme Court's limiting instructions to the jury to disregard any reference to the defendant's alleged possession of a weapon during a traffic altercation, subsequent to the court dismissing the count of menacing in the second degree related to that alleged possession (see People v. Bender, 236 A.D.3d 1184, 1189, 230 N.Y.S.3d 433, lv granted 43 N.Y.3d 967, 232 N.Y.S.3d 459, 258 N.E.3d 1231;  People v. Bramble, 81 A.D.3d at 968–969, 917 N.Y.S.2d 297).

The defendant's contention that the Supreme Court improvidently exercised its discretion in admitting Molineux evidence (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286) is unpreserved for appellate review (see CPL 470.05[2];  People v. Ford, 233 A.D.3d 891, 893, 221 N.Y.S.3d 689;  People v. Duchi, 176 A.D.3d at 968, 108 N.Y.S.3d 355).  In any event, contrary to the defendant's contention, the challenged evidence did not constitute Molineux evidence, since it was not a prior bad act or prior uncharged crime, but rather, was “relevant to the very same crime for which the defendant [was] on trial” (People v. Duchi, 176 A.D.3d at 968, 108 N.Y.S.3d 355 [internal quotation marks omitted];  see People v. Frumusa, 29 N.Y.3d 364, 370, 57 N.Y.S.3d 103, 79 N.E.3d 495) and provided a complete “ ‘narrative of the events charged in the indictment’ ” as well as “ ‘necessary background information’ ” (People v. Anderson, 235 A.D.3d 993, 993, 228 N.Y.S.3d 292, quoting People v. Jones, 206 A.D.3d 671, 673, 168 N.Y.S.3d 532).  Moreover, any prejudice to the defendant was minimized by the court's limiting instructions (see id.;  People v. Taylor, 210 A.D.3d 807, 808, 177 N.Y.S.3d 709).

The Supreme Court erred in admitting the defendant's arrest photograph into evidence, as identification was not an issue, and there was no other relevant purpose in admitting the photograph into evidence (see People v. Diaz, 277 A.D.2d 325, 715 N.Y.S.2d 885;  People v. Black, 117 A.D.2d 512, 497 N.Y.S.2d 929).  However, contrary to the defendant's contention, the photograph was not admitted for the purpose of presenting the defendant as a “scowling, mean person,” but rather, to establish the change in his appearance.  Under the circumstances, the error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Diaz, 277 A.D.2d 325, 715 N.Y.S.2d 885).

“[T]his Court's plenary authority to review sentences is an important responsibility to assure that sentences in given cases are not ‘unduly harsh or severe under the circumstances’ ” (People v. Pelaez, 218 A.D.3d 497, 499, 194 N.Y.S.3d 481, quoting People v. Janvier, 186 A.D.3d 1247, 1250, 130 N.Y.S.3d 486;  see People v. Delgado, 80 N.Y.2d 780, 783, 587 N.Y.S.2d 271, 599 N.E.2d 675).  “ ‘The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence’ ” (People v. Pelaez, 218 A.D.3d at 499, 194 N.Y.S.3d 481, quoting People v. Farrar, 52 N.Y.2d 302, 305, 437 N.Y.S.2d 961, 419 N.E.2d 864).  Based upon our review of the relevant circumstances presented in this case, we exercise our discretion in the interest of justice and reduce the sentence imposed to the extent indicated herein.

IANNACCI, J.P., GENOVESI, FORD and TAYLOR, JJ., concur.