People v. Santos

80 A.D.2d 809, 437 N.Y.S.2d 308, 1981 N.Y. App. Div. LEXIS 10615

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 26, 1981
• Status: Published

Opinion

Judgment of the Supreme Court, Bronx County, rendered September 13, 1979, convicting defendant of criminal possession of a weapon in the second degree and assault in the second degree and sentencing him to concurrent terms of 3V2 years to 10 years (weapon) and a maximum term of 5 years (assault), unanimously affirmed. The evidence of defendant’s guilt was substantial and plainly sufficient to establish defendant’s guilt beyond a reasonable doubt. Complainant and his sister-in-law, eyewitnesses to the shooting, testified that defendant, whom they knew, fired the weapon which injured complainant. Testimony of complainant and the arresting officer that improperly permitted the jury to be aware of an uncharged crime, i.e., defendant’s possession of blackjacks at the time of his arrest, three days after the assault, was of insufficient weight to affect the jury’s verdict. We must observe that in summation it was also improper for the District Attorney to refer gratuitously to the fact that defendant possessed the blackjacks when he was arrested, and for the trial court to overrule defendant’s objection to the District Attorney’s statement. The cumulative effect of those errors — all dealing with the same subject matter — did not, in our view, deprive defendant of a fair trial. Finally, we do not ascribe as error the jury’s knowledge of the gun recovered upon defendant’s arrest, as the District Attorney made a good faith effort to connect it to defendant, albeit without success, and the court gave an appropriate instruction to the jury to disregard the weapon. Concur — Murphy, P. J., Birns, Bloom and Fein, JJ.