People v. Mercer
Opinion of the Court
It is hereby ordered that the judgment so appealed from is unanimously modified on the law by directing that the sentence imposed on count four of the indictment shall run concurrently with the sentences imposed on counts two, three, five, six and seven of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of, inter alia, two counts of murder in the second degree (Penal Law § 125.25 [1], [3]). We reject defendant’s contention that the People should have made the confidential informant available to defendant for questioning. The informant was not an agent of the government as a matter of law (see People v Cardona, 41 NY2d 333, 335 [1977]), and he was not acting as such during the commission of the crime or when he was incarcerated with defendant. County Court did not abuse its discretion in refusing to appoint a handwriting expert to examine the note that defendant allegedly wrote to the informant (see generally People v Olivares, 34 AD3d 602 [2006], lv denied 9 NY3d 879 [2007]). Contrary to defendant’s further contention, the court properly submitted the annotated verdict sheet to the jury inasmuch as it had been provided to and expressly approved by defense counsel (see People v Angelo, 88 NY2d 217, 224 [1996]). We further conclude that the court did not abuse its discretion in removing defendant from the courtroom during the Huntley hearing. The record establishes that defendant continuously interrupted the court and that the court warned defendant that he would be removed from the courtroom if he continued to act in a disruptive manner (see CPL 260.20; People v Byrnes, 33 NY2d 343, 349-350 [1974]).
Further, defendant was not denied his constitutional right to represent himself. The transcript of the Huntley hearing establishes that, after a comprehensive inquiry, the court
We agree with defendant, however, that the court erred in directing that the sentence imposed on count four of the indictment, criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2)]), shall run consecutively with the sentences imposed on counts two, three, five, six and seven of the indictment. Here, “the weapon possession was not separate and distinct from the shooting[ ]” and consecutive sentences thus are prohibited (People v Hamilton, 4 NY3d 654, 659 [2005]; see Penal Law § 70.25 [2]; People v Boyer, 31 AD3d 1136, 1139 [2006], lv denied 7 NY3d 865 [2006]; People v Rudolph, 16 AD3d 1151, 1152-1153 [2005], lv denied 5 NY3d 809 [2005]). We therefore modify the judgment accordingly.
We have considered defendant’s remaining contentions and conclude that none requires reversal. Present—Martoche, J.R, Smith, Peradotto, Garni and Green, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.