PEOPLE v. LONCKE (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Laura R. Johnson, J.), rendered November 18, 2019, convicting him of attempted assault in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing, of the defendant's motion to controvert a search warrant and to suppress physical evidence seized in the execution thereof.

ORDERED that the judgment is affirmed.

The defendant's contention that the indictment should be dismissed as fruit of the poisonous tree of the illegal stop of the defendant leading to his arrest for the instant offenses is unpreserved for appellate review and, in any event, without merit, as the evidence against the defendant, including surveillance video, was not fruit of the illegal stop.  Further, the Supreme Court properly denied the defendant's motion to controvert a search warrant that was based upon a witness's sworn testimony and to suppress physical evidence seized in the execution thereof (see People v. Huginnie, 225 A.D.3d 894, 895, 207 N.Y.S.3d 679).  Contrary to the defendant's contention, the parties did not enter into a stipulation to exclude evidence secured pursuant to the search warrant (see CPL 710.60[2][b];  People v. White, 73 N.Y.2d 468, 475–476, 541 N.Y.S.2d 749, 539 N.E.2d 577).

Further, photographs and messages from the defendant's Facebook account were properly authenticated through testimony of a Facebook representative linking the Facebook unique identifier to both the username and vanity name provided when the account was created (see People v. Kingsberry, 194 A.D.3d 843, 844, 143 N.Y.S.3d 887;  People v. Franzese, 154 A.D.3d 706, 706–707, 61 N.Y.S.3d 661).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.  In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Silverstein, 236 A.D.3d 827, 829, 229 N.Y.S.3d 212).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5];  People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that he was deprived of a fair trial based on several instances of alleged prosecutorial misconduct is mostly unpreserved for appellate review (see CPL 470.05[2]).  In any event, none of the alleged prosecutorial misconduct deprived the defendant of a fair trial (see People v. Moron, 237 A.D.3d 973, 974, 231 N.Y.S.3d 605;  People v. DiValentino, 154 A.D.3d 872, 873, 62 N.Y.S.3d 488).

The defendant's contention that the jury instructions with respect to circumstantial evidence were improper is unpreserved for appellate review, since defense counsel did not object to the instructions as given and informed the Supreme Court at a charge conference that the proposed instructions were “fine” (see CPL 470.05[2];  People v. Hengjun Chao, 217 A.D.3d 777, 779, 191 N.Y.S.3d 135;  People v. Richards, 186 A.D.3d 1720, 1723, 129 N.Y.S.3d 810).  We decline to review this issue in the exercise of our interest of justice jurisdiction (cf.  CPL 470.15[6][a]).  The defendant's contention that he received ineffective assistance of counsel is without merit.  The evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that defense counsel provided meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Vartholomeou, 147 A.D.3d 875, 876, 47 N.Y.S.3d 377).

BARROS, J.P., VOUTSINAS, VENTURA and GOLIA, JJ., concur.