| People v Edwards |
| 2015 NY Slip Op 00404 [124 AD3d 988] |
| January 15, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Edwards, Appellant. |
Eugene P. Grimmick, Troy, for appellant, and appellant
pro se.Joel E. Abelove, District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered December 14, 2011, upon a verdict convicting defendant of thecrime of criminal possession of a weapon in the second degree.
Various law enforcement officials entered an apartment in the City of Troy,Rensselaer County, that was leased to Beauquisha Anderson, to conduct a search forpersons suspected of having been involved in a homicide in New York City. While there,they found defendant lying on a bed in the bedroom, with a handgun located within anarms-length distance on the floor. Defendant was subsequently convicted of criminalpossession of a weapon in the second degree following a jury trial and sentenced, as asecond felony offender, to a prison term of 15 years, followed by five years ofpostrelease supervision. Defendant appeals.
We turn first to defendant's contention that, inasmuch as the handgun was seizedpursuant to an illegal entry and search of the apartment, County Court erred in denyinghis motion to suppress such evidence. The People claim that defendant lacks standing tochallenge the warrantless entry into Anderson's apartment. However, as County Courtfound credible defendant's assertion that he was entitled to a reasonable expectation ofprivacy in Anderson's apartment because he was a frequent guest of hers (see Peoplev Mason, 248 AD2d 751, 753 [1998]; compare People v Ortiz, 83 NY2d840, 842-843 [1994]; People v McMahon, 238 AD2d 834, 836 [1997]),defendant may now contest the propriety of the warrantless entry into theapartment.
[*2] Turning to the merits ofdefendant's argument, law enforcement "may lawfully conduct a warrantless search of apremises when they have obtained the voluntary consent of a party who possesses therequisite degree of authority and control over it" (People v Dean, 46 AD3d 1229, 1231 [2007], lvdenied 10 NY3d 763 [2008]; see People v Adams, 53 NY2d 1, 8-10 [1981],cert denied 454 US 854 [1981]; People v Ortiz, 87 AD3d 602, 603 [2011], lv denied17 NY3d 954 [2011]). During the suppression hearing, it was revealed that JohnDowney, a lease enforcement officer, informed a police detective that he believed thatAnderson's apartment was vacant and that tenants frequently abandoned their units in theapartment building without providing notice. Downey further explained that he wasauthorized to enter apartments in order to ensure that they are secure and not occupied bysquatters. Downey averred that he provided law enforcement officers with a key to theapartment because he was concerned that someone other than Anderson may have beenstaying there. When law enforcement arrived at the apartment and knocked on the door,there was no response and no noise was detected from inside the residence. Although itbecame obvious to the officers, after having entered the apartment, that it was not vacant,inasmuch as an objective view of the evidence adequately demonstrated that the policereasonably relied in good faith upon Downey's apparent authority to allow entry into theapartment, County Court properly found that the warrantless entry—and resultingseizure of the gun that was in plain view—was not illegal (see People vAdams, 53 NY2d at 8-10; People v Dean, 46 AD3d at 1231; People vRemo, 98 AD2d 843, 844 [1983]).
Nor are we persuaded that the conviction was contrary to the weight of theevidence.[FN*]Where, as here, a different outcome would not have been unreasonable, we "must, likethe trier of fact below, weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony" (People v McCoy, 89 AD3d1218, 1221 [2011], lv denied 18 NY3d 960 [2012] [internal quotation marksand citation omitted]; see Peoplev Sheppard, 107 AD3d 1237, 1238 [2013], lv denied 22 NY3d 1203[2014]). As to this particular issue, defendant only argues that the People failed toestablish the element of constructive possession of the handgun at trial. We disagree.
Constructive possession of a weapon "can be established by evidence that thedefendant had dominion and control over the weapon or the area in which it was found"(People v Bellamy, 118AD3d 1113, 1114 [2014]; see People v Dawson, 110 AD3d 1350, 1352 [2013], lvdenied 23 NY3d 1035 [2014]). While defendant argues that Anderson and two otherindividuals had spent the night in the apartment, constructive possession can be found" 'even though others may have access to [the] premises' " (People v Stewart, 95 AD3d1363, 1364 [2012], lv denied 19 NY3d 1001 [2012], quoting People v Pinkney, 90 AD3d1313, 1314-1315 [2011]; see People v Bellamy, 118 AD3d at 1114). ThePeople's evidence showed that, when an officer first entered the bedroom in Anderson'sapartment, defendant was found lying on his back in a bed. Defendant and a woman whowas sitting on the corner of the bed were ordered to raise their hands into the air;however, when the officer realized that he could not fully open the bedroom door, hequickly checked behind the door to confirm that the room was secure. When the officerturned his attention back to defendant, he saw defendant's hands hanging over the side ofthe bed [*3]as he reached in the direction of the gun thatwas on the floor. As this was occurring, another officer entered the bedroom, and bothofficers warned defendant to show his hands. Defendant acquiesced and wassubsequently taken into police custody. Viewing this evidence in a neutral light anddeferring to the jury's credibility determinations, we conclude that constructivepossession was established (seePeople v Perry, 116 AD3d 1253, 1255 [2014]; People v Stewart, 95AD3d at 1364; People v Pinkney, 90 AD3d at 1315).
As for defendant's claim that he was denied a fair trial due to the People's improperquestioning of certain law enforcement witnesses, such assertion was not preserved byraising an objection to the testimony during the trial (see People v Hughes, 111 AD3d 1170, 1173 [2013], lvdenied 23 NY3d 1038 [2014]). Were this issue properly before us, we woulddisagree that the content of such testimony was unduly prejudicial (see People v Weber, 40 AD3d1267, 1268 [2007], lv denied 9 NY3d 927 [2007]; People v Roberts, 12 AD3d835, 837-838 [2004], lv denied 4 NY3d 802 [2005]). Nor do we agree thatcounsel's alleged failure to contest the admission of the police officer's impropertestimony or place defendant on the stand, among other purportedly critical missteps,constituted the denial of his right to the effective assistance of counsel. In particular,defendant maintains that certain testimony regarding the circumstances that led the policeto Anderson's apartment went beyond the scope allowed by County Court, which hadlimited the People's proof to that which indicated that officers from the New York CityPolice Department and United States Marshals Service had come to Troy in order toconduct an investigation. While the witnesses indicated that their professional dutiesinvolved searching for "fugitives" or individuals wanted in connection with felonycrimes, the court instructed the jury that such background information did not relate inany way to defendant or to the facts of this case. As defendant failed to" 'demonstrate the absence of strategic or other legitimate explanations' forcounsel's allegedly deficient conduct" at trial, defendant's claim has been renderedunavailing (People v Caban,5 NY3d 143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 709[1988]; see People v Jordan,99 AD3d 1109, 1110 [2012], lv denied 20 NY3d 1012 [2013]).
Finally, defendant claims that his sentence is harsh and excessive. However, in theabsence of an abuse of discretion by County Court or the existence of any extraordinarycircumstances, we decline to reduce defendant's sentence, which falls within thepermissible statutory range (seePeople v Appleby, 79 AD3d 1533, 1534 [2010]; People v Brown, 46 AD3d949, 952 [2007], lv denied 10 NY3d 808 [2008]).
McCarthy, J.P., Garry, Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although defendant'sgeneral motion to dismiss failed to preserve his legal sufficiency argument (see People v Hawkins, 11NY3d 484, 492 [2008]), in our review of his claim that the verdict was against theweight of the evidence, we necessarily evaluate whether all of the elements of thecharged crime were proven beyond a reasonable doubt (see People v Junior, 119 AD3d1228, 1229 [2014], lv denied 24 NY3d 1044 [2014]).