| People v Oliver |
| 2016 NY Slip Op 00403 [135 AD3d 1188] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vShaquan Oliver, Appellant. |
Matthew C. Hug, Troy, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedDecember 18, 2013 in Albany County, upon a verdict convicting defendant of the crimeof criminal possession of a weapon in the second degree.
Defendant and two other individuals were charged in a nine-count indictment withone count of murder in the second degree, six counts of robbery in the first degree andtwo counts of robbery in the second degree. Those charges stemmed from a fatalshooting that occurred on Ontario Street in the City of Albany in September2012.[FN1] Duringthe course of an unrelated drug investigation, members of the Albany Police Departmentdeveloped information implicating defendant in the shooting and thereafter set upsurveillance outside of the house where defendant's mother resided.
On September 25, 2012, defendant was observed exiting his mother'sresidence—"clutching his hooded sweatshirt in where the middle pocket wouldbe"—and entering the passenger side of a green Honda Accord. Following anattempted traffic stop, a brief chase ensued, during the course of which more than one ofthe pursuing officers observed what they believed to be a black handgun thrown from thepassenger side window of the vehicle. As a result of this incident, defendant was indictedand charged with one count of criminal possession [*2]ofa weapon in the second degree and one count of criminal possession of a weapon in thethird degree.
In July 2013, County Court (Herrick, J.) conducted a suppression hearing in thecontext of the murder and robbery charges. Shortly thereafter, the parties appeared beforeSupreme Court (Breslin, J.) with respect to the weapons charges, at which time SupremeCourt noted—with respect to defendant's request for a Mapphearing—the "identity of circumstances" between the two indictments.Accordingly, Supreme Court indicated that County Court's suppression ruling as to themurder and robbery charges would be controlling relative to the weapons chargespending before Supreme Court. Defense counsel expressly agreed that County Court'sdecision in this regard would be binding upon Supreme Court and identified no furtherbasis upon which Supreme Court would be required to conduct a separate suppressionhearing. Thereafter, in September 2013, County Court issued its suppression rulingfinding, insofar as is relevant here, that there was probable cause for defendant'sarrest.
At the conclusion of the jury trial that followed, defendant was convicted of criminalpossession of a weapon in the second degree.[FN2] Supreme Court thereafter sentenceddefendant, as a second violent felony offender, to 13 years in prison followed by fiveyears of postrelease supervision. This appeal by defendant ensued.
We affirm. Defendant initially contends that the police lacked probable cause toeffectuate his arrest and, therefore, the physical evidence seized, i.e., the handgun, shouldhave been suppressed. Although the record before us does not expressly reflect thatSupreme Court formally adopted County Court's written suppression ruling or otherwiseset forth its own findings of fact, conclusions of law and reasons for its determination onthis point (see CPL 710.40 [3]; 710.60 [6]), defendant waived any objection tothis alleged procedural irregularity by agreeing to be bound by County Court'ssuppression ruling, proceeding to trial without a separate suppression hearingbefore—or ruling by—Supreme Court and failing to object to the admissionof the now challenged evidence at trial (see People v Wilson, 90 AD3d 1155, 1155-1156 [2011],lv denied 18 NY3d 963 [2012]; People v Jones, 47 AD3d 961, 963 n 2 [2008], lvdenied 10 NY3d 812 [2008]; People v Murray, 7 AD3d 828, 830 [2004], lvdenied 3 NY3d 679 [2004]; People v Wright, 5 AD3d 873, 875 [2004], lvdenied 3 NY3d 651 [2004]). Notably, defendant has not raised an ineffectiveassistance of counsel claim in this regard (compare People v Jones, 47 AD3d at963 n 2). Accordingly, defendant has failed to preserve the merits of his suppressionclaim for our review.
Defendant next contends that the verdict convicting him of criminal possession of aweapon in the second degree is not supported by legally sufficient evidence and, further,is against the weight of the evidence. Although defendant's generalized motion for a trialorder of dismissal failed to preserve his legal sufficiency claim for our review, "ourweight of the evidence analysis necessarily involves an evaluation of whether allelements of the charged crime[ ] were proven beyond a reasonable doubt at trial" (People v Robinson, 123 AD3d1224, 1225 [2014] [internal quotation marks, brackets and citations omitted], lvdenied 25 NY3d 992 [2015]). Insofar as is relevant here, a person is guilty ofcriminal possession of a weapon in the second degree when he or she possesses a loadedfirearm outside the presence of his or her home or place of business (see PenalLaw § 265.03 [3]; People v Capers, 129 AD3d 1313, 1314 [2015]; People v Miles, 119 AD3d1077, 1078 [2014], lv denied 24 NY3d 1003 [2014]).[*3]"Constructive possession can be demonstrated where thereis evidence—either direct or circumstantial—that defendant exerciseddominion and control over the weapon or the area in which it was found" (People v Butler, 126 AD3d1122, 1123 [2015] [internal quotation marks and citations omitted], lvdenied 25 NY3d 1199 [2015]; see People v McGough, 122 AD3d 1164, 1166 [2014],lv denied 24 NY3d 1220 [2015]). Except under circumstances not applicablehere, "[t]he presence in an automobile . . . of any firearm . . . ispresumptive evidence of its possession by all persons occupying such automobile at thetime such weapon . . . is found" (Penal Law § 265.15 [3]; accord People v Bianca, 91AD3d 1127, 1127 [2012], lv denied 19 NY3d 862 [2012]). The presumptionmay be rebutted "either by the defendant's own testimony or by any other evidence,including the inherent or developed incredibility of the prosecution's witnesses" (People v Tabb, 12 AD3d951, 952 [2004] [internal quotation marks and citations omitted], lv denied 4NY3d 768 [2005]).
As noted previously, defendant was observed by a member of the surveillance teamleaving his mother's residence "clutching his hooded sweatshirt in where the middlepocket would be" and entering the passenger side of a green Honda Accord. When thevehicle pulled away from the curb, another member of the surveillance team followed inan unmarked vehicle, at which point the detective in question noted that the Honda hadtwo occupants—the driver and defendant, the latter of whom was seated in thepassenger seat.[FN3]A detective in a marked vehicle then initiated a traffic stop and, as members of thetakedown team approached the Honda on foot, defendant was observed moving aroundin his seat, "leaning forward like he was reaching down to the floor" and making"nervous movements." The Honda then fled the scene at a high rate of speed and apursuit ensued. As the chase unfolded, a detective in the lead unmarked vehicle saw "ahandgun being thrown out of the passenger[ ] side window," which, in turn, "hit thewindshield of a parked car, shattered the windshield and . . . bounced overand landed on the ground." Another detective, who also was involved in the pursuit,testified that he "observed the passenger [of the Honda] being [defendant] throw what[he] believed to be a gun out [of] the window." The fleeing vehicle then slowed, at whichpoint defendant jumped out of the passenger side of the vehicle and fled on foot beforebeing apprehended and taken into custody. The weapon was secured, and subsequenttesting of the weapon retrieved from the scene revealed that the handgun was operable.Defendant did not testify.
Although no fingerprints were lifted from the weapon and the DNA retrieved wasinsufficient to make a comparison to a known profile, upon reviewing the foregoingevidence in a neutral light and deferring to the jury's resolution of credibility issues(see generally People v Speed, 134 AD3d 1235, 1236 [2015]; People v Harvey, 96 AD3d 1098, 1100 [2012], lvdenied 20 NY3d 933 [2012]), we are satisfied that the jury's verdict is in accord withthe weight of the evidence (see People v Butler, 126 AD3d at 1123).Accordingly, we discern no basis upon which to disturb the judgment of conviction.Defendant's remaining contentions, including his assertion that the sentence imposed isharsh and excessive, have been examined and found to be lacking in merit.
Peters, P.J., Garry, Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The resolution of thosecharges is the subject of another pending appeal before this Court.
Footnote 2:The People withdrew theremaining count of the indictment at the close of their case.
Footnote 3:More than one of thedetectives identified defendant as the occupant of the passenger seat.