PEOPLE v. PEARSON

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

The PEOPLE, etc., respondent, v. Karriem PEARSON, appellant.

Decided: September 30, 2008

REINALDO E. RIVERA, J.P., HOWARD MILLER, DANIEL D. ANGIOLILLO, and CHERYL E. CHAMBERS, JJ. Edwin Ira Schulman, Kew Gardens, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Aisha S. Greene of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered August 21, 2006, as amended August 28, 2006, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial (Aloise, J.), without a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment, as amended, is affirmed.

 The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence without conducting a hearing (see CPL 710.60[3][a] ), where the defendant failed to make sufficient allegations of standing (see People v. Ramirez-Portoreal, 88 N.Y.2d 99, 109-110, 643 N.Y.S.2d 502, 666 N.E.2d 207;  People v. Perez, 257 A.D.2d 637, 638, 682 N.Y.S.2d 906).

 Contrary to the defendant's contention, his right to be present during all critical stages of the trial was not violated when a court officer entered the jury room to supervise and instruct the jurors regarding the handling of a gun, an exhibit at trial which they had requested, since the officer was performing a ministerial task (see CPL 310.10;  People v. Kelly, 11 A.D.3d 133, 143-144, 781 N.Y.S.2d 75, affd. 5 N.Y.3d 116, 799 N.Y.S.2d 763, 832 N.E.2d 1179;  People v. Rutkoski, 225 A.D.2d 638, 639, 639 N.Y.S.2d 127;  People v. Branford, 220 A.D.2d 203, 631 N.Y.S.2d 844;  People v. Buxton, 192 A.D.2d 289, 293, 601 N.Y.S.2d 132).   The defendant was present when the court read the jury's request for “all exhibits including the gun” and “if possible the feel of it,” and he was also present when the jury was returned to the courtroom and instructed to “follow ․ the officer's exact instructions regarding the weapon” (see CPL 310.30).

 The defendant was properly sentenced as a second violent felony offender based on a prior Pennsylvania conviction of aggravated assault (see 18 Pa. CS § 2702[a][4] ).

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