People v. Johnson

May 18, 1995
Versions:215 A.D.2d 258
626 N.Y.S.2d 775
1995 N.Y. App. Div. LEXIS 5364

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered February 19, 1993, 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 6 years to life, unanimously affirmed.

Evidence that the arresting officer "knew” defendant was properly admitted since defendant vigorously challenged the identification made by the officer (cf., People v Hendricks, 205 AD2d 333, Iv denied 84 NY2d 826), and the trial court’s prompt instruction to the jury to disregard the officer’s testimony that he knew defendant because he had "arrested him several times before” was sufficient to dispel any prejudice inherent in such testimony (see, People v Baez, 208 AD2d 638, Iv denied 84 NY2d 1028).

Notwithstanding the People’s failure to timely appeal the original sentence, defendant was properly resentenced pursuant to CPL 440.40, where his previously imposed sentence of 3Vz to 7 years was invalid as a matter of law (Penal Law § 70.08 [2], [3] [c]), and the record belies defendant’s claim that the issue of whether persistent violent sentencing was mandatory under the statute was resolved " 'on the merits’ ” by the sentencing court (cf., People v Frangiamone, 99 AD2d 842). Concur—Sullivan, J. P., Rubin, Asch, Nardelli and Tom, JJ.