PEOPLE v. WARD (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered July 25, 2007, convicting him of criminal possession of a weapon in the third degree (three counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the Supreme Court improperly allowed the People to amend the indictment to change the description of the weapon possessed on one of the charged counts (see Penal Law §§ 265.01, 265.02 [1] ) from a switchblade knife to a gravity knife is without merit (see CPL 200.70;  People v. Wynn, 277 A.D.2d 946, 716 N.Y.S.2d 238;  People v. Hood, 194 A.D.2d 556, 598 N.Y.S.2d 569).   The People's theory of prosecution did not change since they still needed to show that the defendant possessed a knife that was a per se illegal weapon (see Penal Law § 265.01).   Further, the defendant failed to show that he was prejudiced by the amendment of the indictment (see People v. Logan, 19 A.D.3d 939, 942, 797 N.Y.S.2d 634;  People v. Sage, 204 A.D.2d 746, 747, 612 N.Y.S.2d 648).

 The defendant claims that the testimony regarding a report of “shots fired,” based upon a 911 call, violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.   Since the defendant failed to object with specificity that the challenged statements violated his Sixth Amendment right to confront witnesses against him, his contention is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. F & S Auto Parts, Inc., 24 A.D.3d 795, 809 N.Y.S.2d 93;  People v. Bones, 17 A.D.3d 689, 690, 793 N.Y.S.2d 545).   In any event, statements contained in 911 calls made to obtain police assistance for an ongoing emergency are not necessarily testimonial in nature and do not violate the Confrontation Clause (see Davis v. Washington, 547 U.S. 813, 827-828, 126 S.Ct. 2266, 165 L.Ed.2d 224;  People v. Conyers, 33 A.D.3d 929, 824 N.Y.S.2d 301;  People v. Marino, 21 A.D.3d 430, 800 N.Y.S.2d 439, cert. denied 548 U.S. 908, 126 S.Ct. 2930, 165 L.Ed.2d 958).

 Further, the defendant failed to preserve his contention pursuant to CPL 200.60(3) that the court failed to follow the proper procedures for use of a prior conviction to elevate the level of a charged crime (see CPL 470.05[2];  People v. Santiago, 244 A.D.2d 263, 664 N.Y.S.2d 771).   Indeed, the defendant waived the procedural requirements when, before trial, he stipulated to the correctness of his prior convictions, as enumerated in a special information that the People filed with the court.   The stipulation obviated any need for the court to offer him another opportunity to admit or deny the convictions (see People v. Santiago, 244 A.D.2d 263, 664 N.Y.S.2d 771;  People v. Reid, 232 A.D.2d 173, 648 N.Y.S.2d 12;  People v. Cloyce, 220 A.D.2d 329, 633 N.Y.S.2d 13).

Further, the jury properly convicted the defendant of two separate offenses (see Penal Law § 265.02[1], former § 265.02[4] ) involving possession of the same firearm.   When the same conduct or criminal transaction violates two or more statutory provisions, each violation constitutes a separate and distinct offense (see CPL 40.10[1];  Matter of Klein v. Murtagh, 44 A.D.2d 465, 467-468, 355 N.Y.S.2d 622, affd. 34 N.Y.2d 988, 360 N.Y.S.2d 416, 318 N.E.2d 606).

The police had probable cause to arrest the defendant (see CPL 140.10 [1];  People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451;  People v. Coulanges, 264 A.D.2d 853, 696 N.Y.S.2d 466;  People v. Harrington, 163 A.D.2d 327, 557 N.Y.S.2d 451).   Accordingly, the Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence.