| People v Towndrow |
| 2009 NY Slip Op 03633 [62 AD3d 1028] |
| May 7, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TerryTowndrow, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Chenango County (Sullivan,J.), rendered December 8, 2006, upon a verdict convicting defendant of the crimes of criminalpossession of stolen property in the fourth degree and criminal possession of a weapon in thefourth degree.
In January 2006, the State Police learned during an investigation that a stolen .44 caliberhandgun had recently been sold by a man named "Terry" to Matthew Woolfolk. Woolfolkultimately admitted to purchasing the weapon and agreed to contact the seller to arrange for thepurchase of another firearm. In that regard, Woolfolk, on January 26, 2006, while wearing aradio transmitter and being surveilled by State Police personnel, met with defendant and hiscousin, Erick Wright, and paid them $100 for a Remington 12-gauge shotgun. This weapon, andthe.44 caliber handgun that Woolfolk had previously purchased from defendant, were laterdetermined to have been stolen during a residential burglary committed in the Town of Norwich,Chenango County on January 8, 2006. At the time of the sale, Woolfolk was overheard by StatePolice personnel discussing with defendant and his cousin the prior purchase of the handgun, aswell as the purchase of other firearms by Woolfolk from defendant in the future. After defendantand Wright left the scene, a search warrant was obtained for defendant's residence and, during itsexecution, four firearms were recovered from the attic of defendant's home, three of which were[*2]later determined to be stolen.[FN1]
Defendant was subsequently charged by indictment with criminal possession of stolenproperty in the fourth degree, criminal possession of stolen property in the fifth degree andcriminal possession of a weapon in the fourth degree as to one weapon recovered fromdefendant's residence—a Remington 597 rifle with scope—that was determined tohave been stolen on December 6, 2005 during the burglary of a farmhouse owned by JohnAlishauskas located in the Town of North Norwich, Chenango County. After trial, defendant wasfound guilty of criminal possession of stolen property in the fourth degree and criminalpossession of a weapon in the fourth degree[FN2]and subsequently sentenced to concurrent prison terms of 2 to 4 years and one year, respectively.Defendant now appeals, claiming, among other things, that the convictions were against theweight of the evidence and not supported by legally sufficient evidence, that he was denied theeffective assistance of counsel and that County Court improperly allowed the jury to considerevidence of uncharged crimes on the issue of his guilt. Because we find that none of defendant'sclaims has merit, we now affirm.
Initially, we note that County Court did not err by permitting the People to introduceevidence regarding defendant's involvement in two prior transactions in which stolen firearmswere sold to a third party. This evidence and, in particular, defendant's intimate involvement ineach transaction was relevant to establish defendant's possession of the rifle found in hisresidence and his knowledge that it was stolen (see People v Molineux, 168 NY 264[1901]; see also People v Giles, 11NY3d 495, 498-499 [2008]; People v Alvino, 71 NY2d 233, 241-242 [1987]; People v Athanasatos, 40 AD3d1263, 1265 [2007], lv denied 9 NY3d 872 [2007]). Given the temporal proximityand clear nexus between these criminal acts and the charged offenses, evidence of defendant'sinvolvement in this criminal activity was clearly relevant to establish his mens rea. In addition,County Court issued appropriate limiting instructions when it admitted this evidence at trial thatproperly advised the jury that such evidence could not be used to establish defendant'spropensity for committing any of the crimes set forth in the indictment, but that the evidencecould only be used to determine whether defendant was in possession of a weapon he knew to bestolen and that he had a motive for possessing it (see People v Arafet, 54 AD3d 517, 519-520 [2008], lvgranted 11 NY3d 859 [2008]; People v Doyle, 48 AD3d 961, 963 [2008], lv denied 10NY3d 862 [2008]).
We also find that the evidence introduced at trial was legally sufficient to establishdefendant's possession of the weapon and that he knew it was stolen property. Evidence waspresented at trial that, at the time of his arrest, defendant was in possession of more than one[*3]stolen firearm and that he possessed these firearms for thepurpose of selling them. While defendant was only charged with the illegal possession of onestolen firearm, his prior involvement in illegal sale activity, coupled with the number of stolenfirearms recovered from within his residence, establishes that there was a valid line of reasoningand permissible inferences to support the jury's conclusion that the weapon in the house waspossessed by defendant and that he knew it was stolen (see People v Hall, 57 AD3d 1222, 1225-1226 [2008]; People v Albanese, 38 AD3d1015, 1016-1017 [2007], lv denied 8 NY3d 891 [2007]; see also People vBleakley, 69 NY2d 490, 495 [1987]).[FN3]
Nor was the verdict against the weight of the credible evidence introduced at trial. Whiledefendant does not dispute that the weapons found in his home were stolen, he claims thatcredible evidence was introduced at trial that established that all of the weapons found in theattic of his home had been placed there by third parties without his knowledge. In that regard,both Wright and defendant's son testified that defendant had a rule that no firearms were allowedin his home and that they had put the weapons found in the attic in that location withoutdefendant's knowledge.[FN4]However, during the execution of the search warrant, State Police personnel testified thatnumerous firearms were located throughout defendant's home and were readily visible to anyoneinside the premises. Moreover, the audio recording of Woolfolk's conversation with defendantand Wright, at the time Woolfolk purchased the stolen shotgun, established that defendant notonly knew that the weapon that was the subject of the sale was stolen, but that he had otherfirearms in his home that he was also willing to sell to Woolfolk in future transactions. Viewingthe evidence in a neutral light (seePeople v Carter, 31 AD3d 1056, 1058 [2006], lv denied 7 NY3d 901 [2006])and deferring to the jury's assessment of the credibility of the witnesses who testified at trial and,in particular, Wright and defendant's son, we are of the view that the verdict was not against theweight of the evidence (see People vAllah, 57 AD3d 1115, 1116 [2008]; People v Gilliam, 36 AD3d 1151, 1153 [2007], lv denied 8NY3d 946 [2007]).
Defendant was not, as he claims, deprived of the effective assistance of counsel. While therecord is not clear as to why defendant's former attorney did not represent him at trial, the factremains that new counsel was appointed to represent defendant before the trial commenced. Weascertain nothing in the record to indicate that counsel's ability to adequately prepare a defenseon behalf of defendant was in any way compromised by County Court's refusal to grant hisrequest [*4]for an adjournment just prior to the commencementof the trial. It is also clear from the trial record that defense counsel put forth a vigorous defenseon defendant's behalf, including the presentation of two witnesses, both of whom sought to takefull responsibility for the weapons found in defendant's attic and who attempted to completelyabsolve defendant of any wrongdoing in connection with the crimes charged in the indictment.Reviewing the record as an integrated whole, we conclude that defendant received meaningfulrepresentation (see People v Benevento, 91 NY2d 708, 712 [1998]; People v Phillips, 55 AD3d 1145,1148-1149 [2008], lv denied 11 NY3d 899 [2008]).[FN5]
Defendant's remaining claims have been reviewed and found to be lacking in merit.
Mercure, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The following relevant itemswere recovered during the search of defendant's residence: (1) a .32 caliber pistol; (2) aRemington 597 rifle with scope; (3) a Knight .50 caliber rifle with scope; (4) an Ithaca .22caliber rifle model M-49; (5) a Remington 1100 12-gauge shotgun with Simmons scope; (6) aMarlin .22 caliber rifle with scope; (7) a rifle magazine containing one bullet; (8) a Mossburg20-gauge gun barrel; (9) a green cloth gun case with one gun capacity; and (10) a Woodstreamgun case with four gun capacity.
Footnote 2: Criminal possession of stolenproperty in the fifth degree was not submitted to the jury.
Footnote 3: Defendant also faced charges inBroome County for criminal sale of a weapon in the third degree and criminal possession ofstolen property in the fourth degree. The disposition of those charges is not clear on the face ofthis record.
Footnote 4: Wright, at the time of trial, hadpleaded guilty in both Chenango County and Broome County to charges involving the criminalpossession of firearms for which he received sentences of one year in jail, each to runconcurrently. He conceded at trial that the Chenango County conviction involved his possessionof the rifle that was the subject of this prosecution and that the Broome County convictioninvolved his possession of the shotgun that was sold to Woolfolk during the sale that wasobserved by the State Police.
Footnote 5: As to any error that may havebeen committed by defendant's prior counsel in failing to request inspection of the grand juryminutes, we note that the one witness who testified before the grand jury testified at trial and thathis grand jury testimony was provided as part of the prosecution's obligation to provideRosario material to the defense.