| People v Pope |
| 2012 NY Slip Op 05032 [96 AD3d 1231] |
| June 21, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Steven G.Pope Jr., Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered September 16, 2010, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree (two counts) and criminal possession of a weaponin the third degree.
In December 2008, occupants of an apartment in the City of Binghamton, Broome Countycalled 911 to report that two masked men were trying to gain entry. Responding police officerssaw two men fleeing from the building, pursued them on foot and apprehended defendant and hiscousin. The officers saw the cousin carrying a handgun, which they recovered from the scene,and a sawed-off shotgun and a portable scanner were found in an area where defendant was seenduring the chase.
Defendant was charged by felony complaint with attempted robbery in the first degree andwas later indicted on two counts of criminal possession of a weapon in the second degree and onecount of criminal possession of a weapon in the third degree. County Court reduced the count ofcriminal possession of a weapon in the third degree to a misdemeanor upon determining that theevidence before the grand jury was legally insufficient to establish defendant's predicateconviction. The People thereafter re-presented the case to the grand jury and obtained asuperseding indictment charging the same offenses enumerated in the first instrument. Followinga jury trial, defendant was convicted as charged and sentenced as a persistent violent felonyoffender to an aggregate prison term of 17 years to life. Defendant appeals.[*2]
County Court properly denied defendant's pretrial motionalleging a violation of his statutory and constitutional rights to a speedy trial. Turning first to thestatutory claim, a felony indictment must be dismissed if the People are not ready for trial withinsix months after commencement of the action, which occurs upon the filing of the firstaccusatory instrument—here, the felony complaint (see CPL 1.20 [17]; 30.30 [1][a]; People v Cooper, 98 NY2d 541, 543 [2002]). Whether the People complied with thisobligation is "determined by computing the time elapsed between the filing of the first accusatoryinstrument and the People's declaration of readiness, subtracting any periods of delay that areexcludable under the terms of the statute and then adding to the result any postreadiness periodsof delay that are actually attributable to the People and are ineligible for an exclusion"(People v Cortes, 80 NY2d 201, 208 [1992]; accord People v Fehr, 45 AD3d 920, 922 [2007], lv denied10 NY3d 764 [2008]). For purposes of these calculations, a superseding indictment relates backto the original indictment (see People vFarkas, 16 NY3d 190, 193 [2011]; People v Sinistaj, 67 NY2d 236, 239-241[1986]; People v Fehr, 45 AD3d at 922). Here, 287 days elapsed between the filing of thefelony complaint in December 2008 and the People's September 2009 declaration of readiness onthe second indictment. The People do not contend that any part of the 96 days before theydeclared readiness on the first indictment in March 2009 should be excluded. Thereafter,excludable periods of at least 123 days resulted from motion practice and adjournments requestedby defendant, reducing the maximum time chargeable to the People to less than six months andmaking it unnecessary to determine whether any of the remaining time before the September2009 announcement of readiness was excludable (see CPL 30.30 [4] [a], [b]; People v Seamans, 85 AD3d 1398,1399 [2011]; People v Dunton, 30AD3d 828, 828-829 [2006], lv denied 7 NY3d 847 [2006]).[FN1]
Delay occurring after the People have properly declared readiness within six months may becharged to them "when the delay is attributable to their inaction and directly implicates theirability to proceed to trial" (People v Carter, 91 NY2d 795, 799 [1998]; see generallyPeople v Anderson, 66 NY2d 529 [1985]). Unlike prereadiness delay, where the People mustprove that time periods are excludable, the burden is on defendant to show that postreadinessdelay is chargeable to the People (seePeople v Robinson, 67 AD3d 1042, 1044 [2009], lv denied 13 NY3d 910[2009]).[FN2]Here, no such delay was shown. Although it is argued upon appeal that there was an extendeddelay between the September 2009 declaration of readiness and the May 2010 trial, defendant'sApril 2010 speedy trial motion did not claim that the People caused this delay, nor in fact evenmention it at all. The record reveals that most of this time period was consumed by CountyCourt's consideration of defendant's motion to dismiss the superseding indictment (seeCPL 30.30 [4] [a]).[FN3]As prereadiness delay [*3]comprised less than six months and nopostreadiness delay "resulted from prosecutorial laxity constituting a direct impediment tocommencement of the trial" (People v Miller, 290 AD2d 814, 816 [2002] [internalquotation marks, brackets and citation omitted], lv denied 98 NY2d 678 [2002]), themotion pursuant to CPL 30.30 was properly denied.
Turning to defendant's constitutional claim, the factors to be considered are the length of andreason for the delay, the nature of the charges, whether there was extended pretrial incarcerationand whether the defense was prejudiced (see People v Taranovich, 37 NY2d 442, 445[1975]; see also CPL 30.20). Although defendant was incarcerated throughout the17-month pretrial period, he was subject to a separate parole hold during approximately 10 ofthose months (compare People vWilliams, 16 AD3d 980, 981 [2005], lv denied 5 NY3d 771 [2005]). Uponreview of the remaining factors—in particular, the absence of any claim of prejudice orsignificant delay caused by the People—we find no constitutional injury (see People v Rogers, 8 AD3d 888,889-890 [2004]; People v Rouse, 4AD3d 553, 556 [2004], lv denied 2 NY3d 805 [2004]).
Defendant next contends that his convictions were not supported by legally sufficientevidence and were against the weight of the evidence. Specifically, he asserts that his possessionof the sawed-off shotgun—an element of all three charged offenses—was notestablished (see Penal Law § 265.02 [1]; § 265.03 [1] [b]; [3]). A policeofficer responding to the report that two masked men in dark clothing were trying to enter anapartment saw two men in dark clothing fleeing from the four-apartment building. During thesubsequent chase, several officers and bystanders saw one of these men running through theimmediate area where the shotgun was later discovered. An officer chased this man andapprehended defendant, who wore dark clothing and had a black ski mask around his neck. Soonthereafter, officers searched the area where the chase had occurred and found the partially hiddenshotgun near a scanner that was turned on and tuned to a law enforcement frequency. Subsequentforensic testing of the scanner identified DNA consistent with defendant's, admixed with that ofat least two other persons; defendant was the primary contributor. DNA testing of the shotgunwas inconclusive, but defendant could not be excluded as a contributor. Viewing this evidence inthe light most favorable to the People, we find a " 'valid line of reasoning and permissibleinferences which could lead a rational person to the conclusion reached by the jury on the basisof the evidence at trial' " (People vJohnson, 83 AD3d 1130, 1131 [2011], lv denied 17 NY3d 818 [2011], quotingPeople v Bleakley, 69 NY2d 490, 495 [1987]). Further, upon weighing the evidence, aswell as the relative strength of conflicting inferences, and giving deference to the jury'scredibility determinations, we find that the verdict was not against the weight of the evidence (see People v Carter, 60 AD3d1103, 1107 [2009], lv denied 12 NY3d 924 [2009]; People v Bellamy, 26 AD3d 638,639-640 [2006]; People v Mateo, 13AD3d 987, 988 [2004], lv denied 5 NY3d 883 [2005]).
We reject defendant's contention that the People were improperly permitted to presentevidence of an uncharged crime without a Molineux hearing. County Court correctlydetermined that testimony regarding the men who were seen trying to enter the apartment did notaddress an uncharged attempted robbery; instead, the events in question were part of the crimesat issue and [*4]were directly relevant to defendant's intent to usethe shotgun "unlawfully against another" (Penal Law § 265.03 [1] [b]; compare People v Marshall, 65 AD3d710, 712 [2009], lv denied 13 NY3d 940 [2010]; People v Gilbo, 28 AD3d 945, 945-946 [2006], lv denied 7NY3d 756 [2006]; People v Morales, 309 AD2d 1065, 1066 [2003], lv denied 1NY3d 576 [2003]). Defendant's further contention that County Court erred in denying his requestfor an expanded circumstantial evidence charge is unpreserved, as he withdrew the request uponthe court's denial and did not object to the charge given (see People v Zakrzewski, 7 AD3d 823, 824 [2004]). In any event,no modification in the interest of justice is warranted as the evidence was not whollycircumstantial (see People v Barnes, 50 NY2d 375, 379-380 [1980]; People v Saxton, 75 AD3d 755,758 [2010], lv denied 15 NY3d 924 [2010]).
We reject defendant's contention that his sentences are harsh or excessive. Notably, thesentences imposed for the two class C felony convictions fall near the low end of the permissiblerange for persistent violent felony offenders (see Penal Law § 70.08 [2], [3] [b]). Inview of defendant's substantial criminal history and failure to accept responsibility, we find noextraordinary circumstances or abuse of discretion warranting reduction of his sentence (compare People v Vasquez, 71 AD3d1179, 1181 [2010], lv denied 14 NY3d 894 [2010]). Defendant's remainingcontentions have been considered and found to be without merit.
Peters, P.J., Mercure, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: The six-month period iscalculated on the basis of calendar months and consisted here of 182 days (see People vCortes, 80 NY2d at 207 n 3; Peoplev Brown, 23 AD3d 703, 704 [2005], lv denied 6 NY3d 810 [2006]).
Footnote 2: Although not relevant here, wenote that the People are required to provide a record that is sufficiently clear to reveal who isresponsible for adjournments (see id.).
Footnote 3: On appeal, defendant alsoargues for the first time that the People should be charged with postreadiness delay in obtainingthe grand jury minutes. Even if this claim had been preserved, the record reveals that the Peopledelivered the minutes within the requisite reasonable time (see People v Harris, 82 NY2d409, 413 [1993]; People v Dearstyne, 230 AD2d 953, 955-956 [1996], lv denied89 NY2d 921 [1996]).