| People v Carter |
| 2009 NY Slip Op 01548 [60 AD3d 1103] |
| March 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Iquan D.Carter, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered July 18, 2007in Albany County, upon a verdict convicting defendant of the crime of criminal possession of aweapon in the third degree.
Defendant was arrested after a traffic stop and was thereafter indicted on two counts ofcriminal possession of a weapon in the third degree and one count of unlawful possession ofmarihuana. Following a suppression hearing, County Court (Herrick, J.) denied defendant'smotion to suppress the evidence found during the traffic stop. Defendant was found guilty of onecount of criminal possession of a weapon in the third degree and unlawful possession ofmarihuana.[FN*]He was sentenced to a prison term of six years with three years of postrelease supervision.Defendant now appeals and we affirm.
First, we find that County Court properly denied defendant's motion to suppress themarihuana and the weapon seized at the time of the traffic stop. Officer Edward Vogel testifiedat the suppression hearing that, while he was on patrol with his partner on a rainy day, theyeffected a traffic stop of the car in which defendant was a front seat passenger because the [*2]vehicle was being operated in violation of Vehicle and Traffic Law§ 375 (2) (a) without headlights on. Upon approaching the vehicle, both Vogel and hispartner smelled marihuana emanating therefrom. While speaking with the driver—whoindicated that he did not have a driver's license (in violation of Vehicle and Traffic Law §509 [1])—the officers also noticed the backseat passenger acting suspiciously and "like hewas trying to hide something," causing Vogel to be concerned for his own safety. When Vogelthen opened the back door, he observed an unlit marihuana cigarette on the seat. In themeantime, Vogel's partner, who was standing near the front of the car, saw an unlit marihuanacigarette in the open ashtray in the front console, whereupon Vogel asked defendant to exit thevehicle and then placed him in custody. Subsequently, Vogel reached into the car to remove themarihuana cigarette from the ashtray and noticed a gun between the passenger seat and thecenter console. Upon retrieving the gun, Vogel discovered that it was loaded.
The mere opening of a car door during a traffic stop is a minimal intrusion into an occupant'sexpectation of privacy and is justified under certain circumstances, including the necessity ofsecuring an officer's safety (see People v David L., 81 AD2d 893, 895-896 [1981,Hopkins, J.P., and Weinstein, J., dissenting], revd on dissenting mem below 56 NY2d698 [1982], cert denied 459 US 866 [1982]). Here, given the driver's failure to have alicense, the behavior of the backseat passenger, the smell of marihuana coming from the car andVogel's concern for his own safety, we find that Vogel was justified in opening the back door ofthe car (see People v Otero, 255 AD2d 158, 159 [1998], lv denied 92 NY2d 1052[1999]). Moreover, in the course of a legal traffic stop, the officers were also entitled to order theoccupants out of the vehicle even without any detailed reason for believing they possessed aweapon (see People v Robinson, 74 NY2d 773, 774-775 [1989], cert denied 493US 966 [1989]). In addition, having seen the marihuana in plain view, the officers had probablecause to arrest defendant and search the car (see People v Garcia, 30 AD3d 833, 834 [2006]). Inasmuch as theweapon was also in plain view, it was properly seized (see People v Brown, 96 NY2d 80,88 [2001]). Because the searches were constitutional, County Court properly admitted theevidence seized during the traffic stop.
We also disagree with defendant's contention that the verdict is repugnant. Whendetermining whether a verdict is repugnant, our review is limited to ascertaining what elementsof the crimes as charged were described to the jury (see People v Tucker, 55 NY2d 1, 7[1981]; People v Harris, 50 AD3d1387, 1389 [2008]; People v Rust, 233 AD2d 778, 779 [1996], lv denied 89NY2d 988 [1997]). Here, defendant was charged with two counts of criminal possession of aweapon in the third degree, but found guilty of only one of them. Supreme Court properlyinstructed the jury that to find defendant guilty of the first count, it would have to find, beyond areasonable doubt, that defendant "possessed a firearm[,] [t]hat the defendant did so knowingly[,][t]hat the firearm was loaded and operable [and t]hat the defendant possessed such firearm in aplace that was not the defendant's home or place of business" (see Penal Law §265.02 former [4]; People v Tolbert, 253 AD2d 832, 832 [1998], lv denied 92NY2d 1039 [1998]). As to the second count, Supreme Court correctly instructed the jury that tofind defendant guilty it must find, beyond a reasonable doubt, that defendant "possessed a .380caliber Lorcin handgun, which had been defaced for the purpose of misrepresenting the identityof such .380 caliber Lorcin handgun[,] [t]hat the defendant did so knowingly[,] [and t]hat suchfirearm was operable" (Penal Law § 265.02 [3]). The elements of the two crimes are notidentical. Because an individual can knowingly possess a weapon without necessarily knowing itis defaced, defendant's conviction on the first count is not "inherently inconsistent" with hisacquittal on the second count (People v Tucker, 55 NY2d at 4) and, therefore, the verdictis not [*3]repugnant (see People v Mendoza, 300 AD2d824, 824-825 [2002], lv denied 99 NY2d 617 [2003]).
We also reject defendant's challenges to the legal sufficiency and weight of the evidence,which center on the element of possession. Defendant's possession of the weapon may beestablished through the doctrine of constructive possession, which is based on the exercise ofdominion and control over the area in which an item is found (see People v Edwards, 39 AD3d1078, 1079 [2007]). Vogel testified at trial that, after observing a marihuana cigarette in thefront console ashtray and requesting that defendant exit the car, he reached into the car to obtainthe cigarette. Vogel explained that, as he entered the car to remove the cigarette, he looked downand "saw the butt of a handgun in between the passenger seat and the center console area." Hethen grabbed the gun and saw that it was loaded with seven rounds of ammunition.
"Viewing [this] evidence in the light most favorable to the People" (People v Brown, 46 AD3d 949,951 [2007], lv denied 10 NY3d 808 [2008]), the People demonstrated, as required, thatdefendant was in an automobile in which a loaded weapon was present (see Penal Law§ 265.15 [3]). Given the location and position of the handgun relative to where defendantwas seated, the jury was then entitled to accept or reject the permissible inference that defendantpossessed the weapon (see People v Bleakley, 69 NY2d 490, 495 [1987]; People vLemmons, 40 NY2d 505, 511-512 [1976]). Therefore, legally sufficient evidence supportsdefendant's conviction of criminal possession of a weapon in the third degree (see People v Mateo, 13 AD3d987, 987-988 [2004], lv denied 5 NY3d 883 [2005]; People v Morgan, 259AD2d 771, 773 [1999], lv denied 93 NY2d 975 [1999]).
Defendant's denial that the weapon was his or that he knew it was in the vehicle, as well asother evidence offered to support a finding that it belonged to one of the other occupants of thevehicle, presented an issue of credibility for the jury to resolve (see People v Mangual, 13 AD3d734, 736 [2004], lv denied 4 NY3d 800 [2005]). Although, "based on all thecredible evidence a different finding would not have been unreasonable" (People vBleakley, 69 NY2d at 495), viewing the evidence in a neutral light and giving "appropriatedeference to the jury's superior opportunity to assess the witnesses' credibility" (People v Gilliam, 36 AD3d 1151,1152-1153 [2007], lv denied 8 NY3d 946 [2007]; see People v Griffin, 26 AD3d 594, 596 [2006], lv denied7 NY3d 756 [2006]), we find that "the jury was justified in finding the defendant guilty beyond areasonable doubt" (People vDanielson, 9 NY3d 342, 348 [2007]; see People v Romero, 7 NY3d 633, 636 [2006]; People vBleakley, 69 NY2d at 495; Peoplev Khuong Dinh Pham, 31 AD3d 962, 964 [2006]).
We also discern no error in Supreme Court's instruction to the jury as to the doctrine ofconstructive possession. In relying on the pattern jury instructions, the court properly explainedthe doctrine and stressed, among other things, that the jury was permitted—but notrequired—to infer possession based upon defendant's presence in the car with the weapon(see People v Drake, 7 NY3d28, 34 [2006]; People vWaters, 30 AD3d 681, 682 [2006], lv denied 7 NY3d 796 [2006]).
Finally, we decline to disturb defendant's sentence. Given the nature of the offense anddefendant's criminal history, Supreme Court did not abuse its discretion in denying defendantyouthful offender status (see CPL 720.20 [1]; People v Anderson, 48 AD3d 896, 898 [2008], lv denied10 NY3d 859 [2008]). Nor can it be said that defendant's sentence is harsh and excessive and noextraordinary circumstances exist warranting a modification (see People v Levy, 52AD3d [*4]1025, 1028-1029 [2008]; People v Anderson,48 AD3d at 898).
Cardona, P.J., Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The conviction on themarihuana count was later set aside by Supreme Court.