People v. Bouknight

The defendant’s contention that the Supreme Court erred in permitting various prosecution witnesses to testify regarding his past actions with respect to the victim’s daughter is unpreserved for appellate review (see CPL 470.05 [2]; People v Dahlbender, 23 AD3d 493, 494 [2005]). In any event, contrary to the defendant’s claim, “[t]he challenged evidence did not ‘concern the type of illegal or immoral conduct which would deprive the defendant of a fair trial’ ” (People v Jenneman, 37 AD3d 736, 737-738 [2007], quoting People v Gonsa, 220 AD2d 27, 30 [1996]; People v Hall, 299 AD2d 493 [2002]; People v Jones, 293 AD2d 489 [2002]). Further, the Supreme Court properly instructed the jurors that they were to consider such testimony only as relevant background information and to complete the narrative of the crime charged (see People v Berg, 59 NY2d 294, 299-300 [1983]; People v Johnson, 45 AD3d 606 [2007]; People v Hall, 299 AD2d 493 [2002]; People v Correa, 246 AD2d 552 [1998]; People v Davis, 169 AD2d 774, 775 [1991]; see also People v Chestnut, 254 AD2d 525, 526 [1998]). However, as the defendant contends and the People correctly concede, the Supreme Court imposed an illegal determinate term of seven years’ imprisonment and a period of postrelease 958 supervision on his conviction of criminal possession of a weapon in the third degree under Penal Law § 265.02 (1), a nonviolent class D felony (see Penal Law § 265.02 [1]; § 70.00 [1], [6]; § 70.02 [1] [c]). Thus, we vacate the sentence on that conviction, and remit the matter to the Supreme Court, Kings County, for resentencing thereon. Dillon, J.R, Belen, Roman and Miller, JJ., concur.