The People, etc., respondent, v. Hazon Benson, Jr., appellant. (2026)

Argued—September 14, 2026

DECISION & ORDER

K/

Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered October 7, 2022, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence supporting his conviction (see CPL 470.05[2];  People v. Hawkins, 11 NY3d 484, 492).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Parker, 197 AD3d 732, 733).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410;  People v. Bleakley, 69 N.Y.2d 490, 495).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

Contrary to the defendant's contention, the Supreme Court did not violate his rights to confrontation, to present a defense, or to a fair trial, by permitting certain testimony by two police officers concerning information they received from a confidential informant and by limiting cross-examination concerning the informant's compensation and description of a firearm.  “The [Confrontation] Clause [of the United States Constitution] does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted” (Crawford v. Washington, 541 U.S. 36, 59 n 9;  see Smith v. Arizona, 602 U.S. 779, 794–795;  People v. Bryant, 225 AD3d 618, 619).  Here, after defense counsel suggested that one of the officers had planted the firearm during a search of the defendant's bedroom (see People v. Bryant, 225 AD3d at 619), testimony that the officers had previously received information that the defendant kept a firearm in a bag in his bedroom was received not for its truth, but, rather, to show the officers' state of mind in order to rebut the defendant's contention that the search was conducted in bad faith and that one of the officers had planted the gun (see People v. Reynoso, 2 NY3d 820;  People v. Bryant, 225 AD3d at 619;  cf.  Hemphill v. New York, 595 U.S. 140).  Further, the court repeatedly instructed the jury that the testimony was not admitted for its truth or as evidence that the defendant had committed any prior crime, and could be considered only to explain the officers' conduct (see People v. Young, 168 AD3d 771, 772).  The jury is presumed to have followed such instructions (see People v. Davis, 58 N.Y.2d 1102, 1104).  There is no merit to the defendant's further contention that the court's exercise of its discretion in controlling the permissible scope of cross-examination limited the defendant's ability to present a defense (see People v. Herrera–Machuca, 181 AD3d 901, 902).  The scope of cross-examination is within the sound discretion of the trial court, which may limit cross-examination when, as here, questions are irrelevant, concern collateral issues, or risk misleading the jury (see People v. Corby, 6 NY3d 231, 234–235;  People v. Kelson, 218 AD3d 491, 492).

The Supreme Court also providently exercised its discretion in admitting into evidence a search warrant and testimony that the defendant was the target of the search warrant, as the evidence was relevant, and “not so inflammatory that its prejudicial effect exceeded its probative value” (People v. Jones, 224 AD3d 1348, 1350 [internal quotation marks omitted];  see People v. Morris, 21 NY3d 588, 597–599).  Moreover, the court specifically instructed the jury on the limited purpose of this evidence (see People v. Torres, 243 AD3d 813, 814).

The defendant's contention that the admission of DNA evidence violated his rights under the Confrontation Clause because the testifying analyst did not perform or witness any part of the DNA testing and did not independently analyze the raw data is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to review the issue in the exercise of our interest of justice jurisdiction (see People v. Garcia, 249 AD3d 1196, 1197;  People v. Hairston, 213 AD3d 694, 695).  Further, the defendant's contention that his counsel was ineffective for failing to preserve the Confrontation Clause issue is without merit (see People v. Benevento, 91 N.Y.2d 708;  People v. Baldi, 54 N.Y.2d 137), as the issue was not “ ‘so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it’ ” (People v. Liggins, 185 AD3d 721, 721 [internal quotation marks omitted], quoting People v. Rodriguez, 31 NY3d 1067, 1068).

The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review, as the defendant failed to object to the remarks at issue (see CPL 470.05[2];  People v. Anderson, 197 AD3d 713).  In any event, most of the challenged remarks were responsive to the defense summation, were within the bounds of permissible rhetorical comment, or constituted fair comment on the evidence (see People v. Morales, 201 AD3d 819).  To the extent that any of the remarks were improper or the prosecutor misstated the evidence on summation, those comments were either sufficiently addressed by the Supreme Court's instructions to the jury that it was the jury's recollection of the evidence that controlled (see People v. Morrow, 143 AD3d 919, 921) or were not so egregious as to have deprived the defendant of a fair trial (see People v. Komynar, 210 AD3d 698, 700;  People v. Elder, 152 AD3d 787, 789).

The defendant's remaining contention is without merit.

IANNACCI, J.P., VOUTSINAS, GOLIA and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court