PEOPLE v. HODEN

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Kwame HODEN, Defendant–Appellant.

Decided: June 14, 2011

SAXE, J.P., ACOSTA, DeGRASSE, ABDUS–SALAAM, MANZANET–DANIELS, JJ. Franzblau Dratch, P.C., New York (Stephen N. Dratch of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Bari L. Kamlet of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Albert Lorenzo, J.), rendered September 5, 2007, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of 17 years to life, unanimously affirmed.

 Because defendant's specific claim of evidentiary deficiency was not presented to the trial court, his argument that the verdict was based on legally insufficient evidence is unpreserved, and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.   We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–49, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   The evidence clearly warrants the conclusion that defendant possessed a firearm.

 Defendant's motion to suppress identification evidence was properly denied.   The showup procedure was conducted in close geographic and temporal proximity to the underlying crime, and it was not unduly suggestive (see e.g. People v. Reyes, 272 A.D.2d 244, 245, 708 N.Y.S.2d 82 [2000], lv. denied 95 N.Y.2d 907, 716 N.Y.S.2d 648, 739 N.E.2d 1153 [2000] ).   Defendant's claim that a police officer made an improper comment to an identifying witness improperly relies on trial testimony (see People v. Abrew, 95 N.Y.2d 806, 808, 710 N.Y.S.2d 833, 732 N.E.2d 940 [2000] ), and is unsubstantiated in any event.