PEOPLE v. FREEMAN

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Jeffrey FREEMAN, Defendant-Appellant.

Decided: May 29, 2003

NARDELLI, J.P., SAXE, SULLIVAN, WALLACH and WILLIAMS, JJ. Kimberly Morgan, for Respondent. Stacey Van Malden, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Dominic Massaro, J.), rendered August 20, 2002, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 7 1/212 and 7 years, respectively, unanimously affirmed.

 The verdict was based upon legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility.   The jury's finding that defendant possessed a weapon with intent to use it unlawfully against another was not undermined by his acquittal of the manslaughter and reckless endangerment charges (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694).   On the evidence presented, these verdicts were logically reconcilable (see People v. Gillespie, 168 A.D.2d 567, 562 N.Y.S.2d 783, lv. denied 77 N.Y.2d 961, 570 N.Y.S.2d 494, 573 N.E.2d 582).   Defendant's related claim that the verdicts were legally repugnant is unpreserved (People v. Satloff, 56 N.Y.2d 745, 452 N.Y.S.2d 12, 437 N.E.2d 271), and without merit (People v. Tucker, 55 N.Y.2d 1, 447 N.Y.S.2d 132, 431 N.E.2d 617).

 Defendant's general objection did not preserve his claim that a statement by the deceased was improperly admitted, and we decline to review it in the interest of justice.   Were we to review this claim, we would find that to the extent that the statement could be viewed as containing a declaration of fact, it constituted a present sense impression (see People v. Brown, 80 N.Y.2d 729, 594 N.Y.S.2d 696, 610 N.E.2d 369).

 The court properly declined to deliver an accomplice corroboration charge.   The witness was not an accomplice as a matter of law and there was an insufficient basis upon which to submit her accomplice status to the jury (see CPL 60.22[2] ) People v. Brooks, 34 N.Y.2d 475, 477-478, 358 N.Y.S.2d 395, 315 N.E.2d 460;  People v. Cruz, 291 A.D.2d 1, 737 N.Y.S.2d 16 lv. denied 97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358.   Although the witness possessed the same gun defendant was charged with possessing, her possession was temporally distinct and unconnected with that of defendant, or with his intended use of the gun.

The court properly denied defendant's request for a missing witness charge on the ground that the uncalled witness's testimony would have been cumulative to other evidence (see People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583).