People v. Nance

Appellate Division of the Supreme Court of New York

People v. Nance

185 A.D.2d 610, 585 N.Y.S.2d 642, 1992 N.Y. App. Div. LEXIS 9120

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 14, 1992

StatusPublished

Cited by5 cases

This text of 185 A.D.2d 610 (People v. Nance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Nance, 185 A.D.2d 610, 585 N.Y.S.2d 642, 1992 N.Y. App. Div. LEXIS 9120 (N.Y. Ct. App. 1992).

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Opinion

Judgment unanimously affirmed. Memorandum: Contrary to defendant’s contention, the prosecutor provided acceptable race-neutral reasons for the exercise of her peremptory challenges against the prospective black jurors.

The court erred in admitting into evidence defendant’s notice of alibi (see, Williams v Florida, 399 US 78 [1970]). The error, however, was harmless (see, People v Crimmins, 36 NY2d 230).

The remark of the police officer, after the witness Hulin selected defendant’s photograph from an array, was not likely to lead to a mistaken identification in view of Hulin’s unequivocal and positive identification of defendant (compare, People v Neese, 138 AD2d 531, 532). In any event, Hulin had an independent source for her in-court identification. She was in the immediate presence of defendant in a well-lighted store and she had an unobstructed view of him for 5 to 10 minutes.

There is no merit to defendant’s argument that his convictions under subdivisions (2) and (4) of Penal Law § 160.15 cannot both stand. The elements in those counts were not all identical (cf., People v Brown, 67 NY2d 555, 560, cert denied 479 US 1093). The counts charged separate crimes, each containing one different element, and they constitute noninclusory, concurrent counts, which, under the circumstances, we have no authority to dismiss (see, People v Davis, 165 AD2d 610, lv denied 78 NY2d 1010). A person may display what [611]*611appears to be a firearm without being armed with a deadly weapon and, conversely, a person may be armed with a deadly weapon without displaying the weapon.

We reject defendant’s contention that his sentence is harsh and excessive.

We have reviewed the arguments made by defendant in his pro se supplemental brief and we find them to be without merit. (Appeal from Judgment of Erie County Court, McCarthy, J. — Murder, 2nd Degree.) Present — Denman, P. J., Boomer, Pine, Balio and Fallon, JJ.

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Judgment unanimously affirmed. Memorandum: Contrary to defendant’s contention, the prosecutor provided acceptable race-neutral reasons for the exercise of her peremptory challenges against the prospective black jurors.

The court erred in admitting into evidence defendant’s notice of alibi (see, Williams v Florida, 399 US 78 [1970]). The error, however, was harmless (see, People v Crimmins, 36 NY2d 230).

The remark of the police officer, after the witness Hulin selected defendant’s photograph from an array, was not likely to lead to a mistaken identification in view of Hulin’s unequivocal and positive identification of defendant (compare, People v Neese, 138 AD2d 531, 532). In any event, Hulin had an independent source for her in-court identification. She was in the immediate presence of defendant in a well-lighted store and she had an unobstructed view of him for 5 to 10 minutes.

There is no merit to defendant’s argument that his convictions under subdivisions (2) and (4) of Penal Law § 160.15 cannot both stand. The elements in those counts were not all identical (cf., People v Brown, 67 NY2d 555, 560, cert denied 479 US 1093). The counts charged separate crimes, each containing one different element, and they constitute noninclusory, concurrent counts, which, under the circumstances, we have no authority to dismiss (see, People v Davis, 165 AD2d 610, lv denied 78 NY2d 1010). A person may display what [611]*611appears to be a firearm without being armed with a deadly weapon and, conversely, a person may be armed with a deadly weapon without displaying the weapon.

We reject defendant’s contention that his sentence is harsh and excessive.

We have reviewed the arguments made by defendant in his pro se supplemental brief and we find them to be without merit. (Appeal from Judgment of Erie County Court, McCarthy, J. — Murder, 2nd Degree.) Present — Denman, P. J., Boomer, Pine, Balio and Fallon, JJ.

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Bluebook (online)

185 A.D.2d 610, 585 N.Y.S.2d 642, 1992 N.Y. App. Div. LEXIS 9120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nance-nyappdiv-1992.

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