| People v Garcia |
| 2010 NY Slip Op 09017 [79 AD3d 1248] |
| December 9, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Johnnie M. Garcia,III, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Chemung County (Buckley, J.), renderedJuly 9, 2007, upon a verdict convicting defendant of the crimes of criminal possession of a weapon inthe second degree and criminal possession of a weapon in the third degree (two counts).
While on duty in a marked police car, Richard Comstock observed a light-skinned male, wearing awhite sweatshirt with dark stripes on the sleeve and a light colored hat on his head, lean out of the frontpassenger-side window of a minivan and fire five or six shots from a semiautomatic handgun at a Jeep,which was in front of the minivan. Comstock reported the incident and pursued the minivan. After ashort distance, the minivan pulled over and a male jumped out of the front passenger-side door and fledby foot in a northwest direction across a parking lot. The minivan sped off and Comstock chose topursue the suspect who jumped out of the van. Comstock momentarily lost sight of the suspect, butthen observed him running across a parking lot in an easterly direction toward a building. The policesurrounded that building and found defendant hiding in the bushes alongside the building. Comstockimmediately identified defendant as the suspect who had fired the shots from and exited the minivan.Defendant was thereafter arrested and indicted on one count of criminal possession of a weapon in thesecond degree and two counts of criminal possession of a weapon in the third degree. After a jury trial,defendant was found guilty as charged and sentenced to an aggregate prison term of 15 years, [*2]with five years of postrelease supervision. He now appeals.
Defendant first contends that count one of the indictment, charging criminal possession of a weaponin the second degree, should be dismissed as jurisdictionally defective because it failed to allege factsconstituting the cited crime. We disagree. Although count one of the indictment incorrectly cited PenalLaw § 265.03 (2) as the crime of which defendant was accused, it alleged facts constituting allthe elements of Penal Law § 265.03 (1) (b) and the People proceeded at all times throughout thecase on the theory that defendant had committed acts in violation of Penal Law § 265.03 (1) (b).In his pretrial omnibus motion, defendant did not specifically apprise County Court of the technicaldefect in the indictment; had he done so, the People would have been alerted to the error, so that theycould move to amend the indictment (see CPL 200.70 [1]; People v Miller, 23 AD3d 699, 701[2005], lv denied 6 NY3d 815 [2006]). Under these circumstances, reversal of his convictionof this count is not warranted.
However, we find merit to defendant's argument that count two of the indictment, charging criminalpossession of a weapon in the third degree in violation of Penal Law § 265.02 (4), should havebeen dismissed. Inasmuch as that subdivision was repealed prior to the date of the indictment(see L 2006, ch 742, § 1), count two was jurisdictionally defective, requiring itsdismissal (see People v Bethea, 61AD3d 1016, 1017 [2009]). As such, defendant's conviction of said count must be reversed.
With regard to defendant's pretrial motion to suppress the statements he gave to the police,Comstock testified at the Huntley hearing that, without asking defendant any questions, he gavehim Miranda warnings and then advised him that an investigator would be in momentarily inorder to question him. Comstock further testified that defendant was left alone for approximately 15 to30 minutes before Investigator Richard Weed arrived. Weed testified at the Huntley hearingthat he advised defendant before beginning his questioning that the Miranda rights conveyed tohim by Comstock still applied. Defendant then made statements to Weed regarding the events of theevening. Despite the absence of a written waiver, defendant's conduct evinced a waiver of his right toremain silent (see People v Sirno, 76 NY2d 967, 968 [1990]; People v Gill, 20 AD3d 434, 434[2005]; People v Nunez, 176 AD2d 70, 72 [1992], affd 80 NY2d 858 [1992]).Moreover, inasmuch as defendant remained in continuous custody, no evidence exists that he wassubjected to coercive tactics and the delay between the administration of the Miranda warningsand the questioning was not excessive, County Court properly determined that defendant's statementswere voluntary (see People v Carelli, 41AD3d 1092, 1093 [2007]; People vGause, 38 AD3d 999, 1000 [2007], lv denied 9 NY3d 865 [2007]).
Defendant's challenge to the legal sufficiency of the evidence supporting the convictions was notfully preserved, as defendant made only a general motion to dismiss at the close of the People's caseand did not renew or supplement the motion upon the close of his case or the People's rebuttal (see People v Richardson, 55 AD3d934, 935 n 1 [2008], lv dismissed 11 NY3d 857 [2008]). " 'However, we necessarilyreview the evidence adduced as to each of the elements of the crimes in the context of our review ofdefendant's challenge regarding the weight of the evidence' " (People v Gonzalez, 64 AD3d 1038, 1040 [2009], lv denied 13NY3d 796 [2009], quoting People vCaston, 60 AD3d 1147, 1148-1149 [2009]). Here, as properly charged by County Court, inorder to convict defendant of the charge of criminal possession of a weapon in the second degree as setforth in count one of the indictment, the People were required to prove that defendant possessed aloaded firearm with the intent to use it unlawfully against another person (see Penal Law§ 265.03 [1] [b]). Conviction of the charge of [*3]criminalpossession of a weapon in the third degree as set forth in count three of the indictment required proofthat, on the date and at the location described therein, defendant knowingly possessed a firearm andthat such firearm was operable (see Penal Law § 265.02 [1]).[FN*]
At trial, Comstock testified that, from a distance of approximately 20 to 25 paces, he observed alight-skinned male, wearing a white sweatshirt with markings on the sleeve and a light colored hat, leanout of the front passenger-side window of the minivan and discharge a semiautomatic weapon atanother vehicle. He further testified regarding his pursuit of defendant, after defendant—matchingthe description of the person who Comstock observed to be the shooter—jumped out of thepassenger-side door and fled on foot. There was also testimony that, when defendant was found hidingin the bushes, he was wearing a light colored sweatshirt with stripes on the shoulders and one boot. Noone else was observed in the vicinity. Defendant's other boot and a black and white hat were foundnearby. In addition, a Sig Sauer P-239 9 millimeter handgun was found in the bushes 40 to 50 yardsaway from where defendant was apprehended and a magazine for the weapon was recovered from anearby parking lot. Testing on the weapon demonstrated that it was operable, and shell casings andbullets recovered in the area where the crime occurred were consistent with having been fired from thatgun. Although defendant proffered the testimony of the driver of the minivan that an occupant of thevehicle other than defendant was the shooter, the jury apparently refused to credit this testimony. Whilea different verdict would not have been unreasonable, considering the evidence in a neutral light andaccording deference to the jury's credibility assessments, made after an opportunity to hear thewitnesses' testimony and observe their demeanor (see People v Romero, 7 NY3d 633, 644 [2006]; People v Hebert, 68 AD3d 1530,1531 [2009], lv denied 14 NY3d 841 [2010]; People v Lane, 47 AD3d 1125, 1126 [2008], lv denied 10NY3d 866 [2008]), we find that defendant's convictions were not against the weight of the evidence.
Defendant's contention that he was entitled to a Wade hearing is unpreserved for ourreview due to his failure to request such a hearing in County Court (see CPL 710.40; People v Hernandez, 44 AD3d 1072,1072 [2007], lv denied 10 NY3d 766 [2008]). Similarly, defendant failed to preserve his claimthat County Court erred in failing to charge the jury regarding the limited probative value of theevidence of flight, as he neither requested a specific charge to that effect nor objected to its absence(see People v Moyer, 75 AD3d1004, 1005 [2010]; People vWesley, 19 AD3d 937, 937 [2005], lv denied 5 NY3d 857 [2005]).
Defendant's remaining contentions, including that his sentence was harsh and excessive and that hewas deprived of the effective assistance of counsel, have been considered and found to be withoutmerit.
Rose, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment is modified, onthe law, by reversing so much thereof as convicted defendant of criminal possession of a weapon in thethird degree under count two of the [*4]indictment; said countdismissed and the sentence imposed thereon vacated; and, as so modified, affirmed.
Footnote *: The additional requirement thatdefendant was previously convicted of a crime was proven outside the presence of the jury.