| People v Pendelton |
| 2011 NY Slip Op 09041 [90 AD3d 1234] |
| December 15, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KhalanPendelton, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Clark,J.), rendered November 24, 2008, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree and menacing in the second degree.
In October 2007, based upon allegations that defendant threatened to shoot a group of peoplegathered near the porch of his apartment building and displayed a handgun to them, defendantwas charged by indictment with criminal possession of a weapon in the second degree (twocounts), criminal possession of a weapon in the third degree and menacing in the second degree.Following a jury trial, defendant was convicted of criminal possession of a weapon in the seconddegree and menacing in the second degree. County Court thereafter sentenced defendant to anaggregate prison term of 12½ years, with 3½ years of postrelease supervision.Defendant appeals.
Initially, defendant contends that the evidence is legally insufficient to support his convictionof criminal possession of a weapon in the second degree because there is no proof to [*2]establish that he possessed a gun or intended to use itunlawfully.[FN1]We disagree. Defendant's possession of the handgun was established by the testimony of twowitnesses who were in the group of people congregated near defendant's apartment that theyobserved defendant display a black object protruding from the waistband of his pants, which theyrecognized as a gun, shortly after defendant had stated that he was going to "hammereverybody."[FN2]After defendant displayed the handgun, one individual in the group called the police, who arrivedshortly thereafter and found a loaded handgun, ammunition and defendant's identification duringa search of defendant's apartment. In addition, defendant's statement to the police after his arrestwas introduced at trial. In it defendant admitted that he resided in the apartment that had beensearched, and that earlier that day he had threatened to "hammer" the group of people, went intohis apartment to obtain the handgun, placed it in his waistband and then showed it to some menon the porch. Defendant's possession of the handgun thus established (see People v Gangar, 79 AD3d1262, 1263 [2010], lv denied 16 NY3d 831 [2011]), the jury was entitled to inferfrom such possession that defendant had intended to use the handgun unlawfully (seePenal Law § 265.15 [4]; People vSolomon, 78 AD3d 1426, 1428 [2010], lv denied 16 NY3d 899 [2011]).
Defendant's argument that the evidence is legally insufficient to support the conviction ofcriminal possession of a weapon in the second degree because there is no proof that the handgunwas operable is not preserved for appellate review because defendant did not raise any issue withrespect to the gun's operability in his motion to dismiss this count of the indictment (see People v Green, 84 AD3d1499, 1500 [2011]). To the extent that defendant argues that the conviction is against theweight of the evidence based on the lack of evidence of the gun's operability, we are notconvinced inasmuch as proof was offered at trial that an evidence technician tested the gun anddetermined that it was operable one day after it was recovered from defendant's apartment. To theextent that defendant's arguments regarding the operability of the gun can be read as a challengeto the legal sufficiency and the weight of the evidence supporting his conviction of menacing inthe second degree, we find that the legal sufficiency argument is not preserved due to defendant'sfailure to challenge such in the motion to dismiss (see id.), and, in light of the evidencethat the gun was indeed operable, we are not convinced that such conviction is against the weightof the evidence.
Next, we are not convinced that County Court (Drago, J.) erred in denying defendant'smotion to suppress oral and written statements that he made to the police after his arrest. Therecord reflects that defendant was read his Miranda rights and he signed a waiver of thoserights before being questioned by the police. He thereafter gave an oral account of the incident,which was then incorporated into a written statement that defendant reviewed, initialed andsigned. Although defendant had indicated to the police officer who questioned him that he hadsmoked marihuana earlier in the day, the police officer testified that, at the time of thequestioning, defendant did not show any signs of intoxication, indicate in any way that he did notunderstand what was happening or request an attorney. Under the circumstances here, CountyCourt [*3]appropriately determined that defendant's statementswere voluntarily made (see People v Ramos, 99 NY2d 27, 35 [2002]; People v Gause, 38 AD3d 999,1000 [2007], lv denied 9 NY3d 865 [2007]).
The photo array from which a witness identified defendant was not unduly suggestive. Aphoto array is "unduly suggestive if particular features of one picture attract the viewer's attentionso as to indicate that the police have made a particular selection" (People v Means, 35 AD3d 975,976 [2006], lv denied 8 NY3d 948 [2007]). Here, contrary to defendant's contention, thebraids in his hair are not a unique characteristic that attracted the witness's attention inasmuch ashe was not the only individual portrayed in the array with braided hair. Nor are we convinced thatthe series of numbers at the bottom of each photograph improperly influenced the witness'sidentification, particularly considering that the witness was instructed to disregard any markingsor numbers on the photographs or other stylistic differences (see People v Lawal, 73 AD3d 1287, 1288 [2010]).
Finally, defendant's remaining contentions, including his claim that the sentence imposed isharsh or excessive, have been considered and found to be unpersuasive.
Mercure, A.P.J., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: This contention was preservedfor review by virtue of defendant's specific motion to dismiss this count of the indictment on thisbasis.
Footnote 2: Testimony at trial establishedthat the word "hammer," when used in such manner, was slang for "gun."