| People v Gray |
| 2017 NY Slip Op 05275 [151 AD3d 1470] |
| June 29, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v DevinGray, Appellant. |
David E. Woodin, Catskill, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Jason J. Kovacs of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered February 27, 2015, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree and reckless endangerment in the seconddegree.
In June 2014, defendant was indicted and charged with criminal possession of a weapon inthe second degree (three counts) and reckless endangerment in the first degree.[FN1] The charges stemmed from anincident that occurred during the early morning hours of June 3, 2014 outside of an apartmentcomplex located in the City of Kingston, Ulster County wherein defendant, who was armed witha loaded 9 millimeter rifle, and another individual, Eric Harris, who was armed with a loaded12-gauge shotgun, met up and exchanged gunfire. Defendant, who was the only person injuredduring this exchange, was taken to a local hospital and treated for gunshot wounds to hisabdominal region. While there, a police officer collected defendant's personal effects, includingthree rounds of ammunition.
Following a jury trial, defendant was convicted of one count of criminal possession of aweapon in the second degree and one count of reckless endangerment in the second degree (as a[*2]lesser included offense). County Court thereafter sentenceddefendant to an aggregate prison term of 15 years followed by five years of postreleasesupervision. Defendant now appeals.
Defendant initially contends that County Court erred in denying his motion to suppresscertain physical evidence—namely, the rifle and ammunition seized from an apartmentnear the scene of the shooting (where his cousin and the mother of his cousin's child resided) andthe three rounds of ammunition collected at the hospital. With respect to the rifle andammunition located in the subject apartment, inasmuch as "defendant was no more than a casualvisitor having 'relatively tenuous ties' to the [apartment]" occupied by his cousin and the motherof his cousin's child (People v Pope,113 AD3d 1121, 1122 [2014], lv denied 23 NY3d 1041 [2014], quoting People vOrtiz, 83 NY2d 840, 842 [1994]),[FN2] we agree with County Court that defendantlacked standing to challenge the seizure of those items (see People v Shire, 77 AD3d 1358, 1359-1360 [2010], lvdenied 15 NY3d 955 [2010]; Peoplev Gonzalez, 45 AD3d 696, 696 [2007], lv denied 10 NY3d 811 [2008]). In anyevent, defendant's argument on this point lacks merit because one of the occupants informed thepolice that there was a firearm in her apartment that did not belong to her, granted the policepermission to enter the apartment "to check for it" and the rifle and ammunition were in plainview (see People v Fayton, 276 AD2d 339, 339-340 [2000], lv denied 95 NY2d963 [2000]; People v Figueroa, 267 AD2d 183, 183 [1999], lv denied 94 NY2d919 [2000]; People v Maye, 206 AD2d 755, 756-757 [1994], lv denied 84 NY2d1035 [1995]).[FN3] As forthe ammunition collected with defendant's clothing at the hospital, even assuming, withoutdeciding, that County Court erred in denying defendant's motion to suppress, we find thiserror—though constitutional in dimension—to be harmless beyond a reasonabledoubt, as "there is no reasonable possibility that the error might have contributed to defendant'sconviction" (People v Crimmins, 36 NY2d 230, 237 [1975]; see People v Lewis, 23 NY3d 179,189 [2014]).
Turning to the evidence adduced at trial, defendant's present challenge to the legalsufficiency of the evidence—namely, that the subject firearm was not a semiautomaticweapon—was not preserved for our review, as defendant did not raise this specific groundin the context of his motion for a trial order of dismissal. "Nevertheless, our weight of theevidence review necessarily involves an evaluation of whether all elements of the charged crimeswere proven beyond a reasonable doubt" (People v Newell, 148 AD3d 1216, 1220 [2017] [internal quotationmarks and citations omitted], lv denied 29 NY3d 1035 [May 25, 2017]). Insofar as is relevant here, "[a] person is guilty of criminalpossession of a weapon in the second degree when . . . such person possesses anyloaded firearm" outside of his or her home or place of business (Penal Law § 265.03[3]). A "loaded firearm" includes "any firearm loaded with ammunition or any firearm which ispossessed by one who, at the same time, possesses a quantity of ammunition which may be usedto discharge such firearm" (Penal Law § 265.00 [15]). A "firearm" includes, amongother things, "an assault weapon" (Penal Law § 265.00 [3] [e]), which isdefined—in relevant part—as "a semiautomatic rifle that has an ability to accept adetachable magazine and has . . . a [*3]pistol gripthat protrudes conspicuously beneath the action of the weapon" (Penal Law§ 265.00 [22] [a] [ii]).[FN4] "Semiautomatic," in turn, "means any repeatingrifle, shotgun or pistol, regardless of barrel or overall length, which utilizes a portion of theenergy of a firing cartridge or shell to extract the fired cartridge case or spent shell and chamberthe next round, and which requires a separate pull of the trigger to fire each cartridge or shell"(Penal Law § 265.00 [21]). Finally, "[a] person is guilty of reckless endangermentin the second degree when he [or she] recklessly engages in conduct which creates a substantialrisk of serious physical injury to another person" (Penal Law § 120.20).
Here, the testimony at trial revealed that defendant and Harris exchanged words in the hoursleading up to the shooting and ultimately encountered one another near the entrance to theapartment complex, at which point—multiple witnesses testified—defendant wasarmed with a rifle and Harris was armed with a shotgun. The war of words continued, during thecourse of which defendant waved his rifle around—variously pointing the weapon in thedirection of at least three individuals. When defendant's cousin approached Harris and attemptedto de-escalate the situation, Harris purportedly said, "I don't give a f. . . . It's just aBB gun." In response, defendant reportedly said, "[Y]ou think this is a BB gun?," and thereafterfired his weapon. Harris then returned fire, and defendant ran into his cousin's nearby apartment.Although the People's witnesses were not in universal agreement as to the number of shots fired(either in total or by defendant), there is no dispute that defendant fired at least one round fromhis rifle, and a spent rifle casing and two spent shotgun shells were recovered at the scene.Accordingly, there is no question that defendant was armed with and did in fact fire hisrifle—at least once—on the night in question.
In addition to the foregoing, defendant readily concedes that the subject firearm wasoperable, was capable of accepting a detachable magazine and had an extended pistol grip(see Penal Law § 265.00 [22] [a] [ii])—facts that also wereconfirmed through the testimony of Michael Powers, a detective with the Kingston PoliceDepartment, Andrew Zell, the lead firearms instructor for the Kingston Police Department, andMichael D'Allaird, a firearms expert employed by the State Police. Defendant nonethelesscontends, however, that the rifle in question did not meet the statutory definition of an assaultweapon because it was not a "semiautomatic rifle" (Penal Law § 265.00 [22] [a]).Specifically, defendant argues that the rifle was not a "repeating rifle" that "utilize[d] a portion ofthe energy of [the] firing cartridge . . . to extract the fired cartridge case. . . and chamber the next round, and which require[d] a separate pull of the triggerto fire each cartridge" (Penal Law § 265.00 [21]).
Contrary to defendant's assertion, the term "repeating rifle," which appears in the portion ofthe statute defining the term "semiautomatic" (see Penal Law § 265.00[21]), refers to the weapon's design and capabilities—not the specific manner in which itwas operated at a particular point in time. Thus, the mere fact that defendant may have only firedone round from his rifle on the morning in question neither precludes nor negates a finding thatthe subject firearm was a "repeating rifle" within the meaning of Penal Law§ 265.00 (21). Stated another way, nothing on the face of the statute requires that aweapon be fired multiple times in order to qualify as a repeating rifle, shotgun or pistol.Similarly, although the testimony revealed that the [*4]rifle'smagazine was broken and inoperable at the time of the shooting, again, the statute only requiresthat the weapon "has an ability to accept a detachable magazine" (Penal Law§ 265.00 [22] [a])—not that such magazine be utilized each and every timethat the weapon is fired. Finally, although defendant makes much of the fact that a spring was acomponent of the process by which new rounds were chambered in the weapon, the presence ofthe spring in the magazine does not take defendant's rifle outside of the definition of asemiautomatic rifle. In this regard, both Powers and D'Allaird testified that defendant's rifle wasa "self feed[ing]" or "automatically fed weapon," meaning that "once it's loaded it will fire aslong as the trigger is pulled." D'Allaird further clarified that, in order to fire multiple rounds, onewould "have to release and squeeze the trigger again and again and again. One trigger, oneround." As to the precise manner in which each round was advanced, Zell explained, "[A]s thetrigger is pulled and the projectile goes down through the barrel, the gases will then lock the boltto the rear forcing . . . the spent casing to eject through the ejection port, which thenlocks the bolt[ ] to the rear, which then the magazine with a spring in it allows pressure for thebolt to go forward and inject another round into the weapon."
From Zell's and D'Allaird's testimony, it is clear that defendant's rifle "utilize[d] a portion ofthe energy of [the] firing cartridge . . . to extract the fired cartridge case. . . and chamber the next round" and, further, "require[d] a separate pull of thetrigger to fire each cartridge" (Penal Law § 265.00 [21]), which places such riflesquarely within the definition of a semiautomatic/repeating rifle. Such proof, coupled with thetestimony from various witnesses as to the manner in which defendant pointed and dischargedhis rifle and the spent 9 millimeter casing recovered from the scene, which was scientificallylinked to the casings recovered when defendant's rifle was successfully test-fired,established—beyond a reasonable doubt—each of the elements of criminalpossession of a weapon in the second degree and reckless endangerment in the second degree. Asthe jury's verdict is in accord with the weight of the evidence, we discern no basis upon which todisturb it.
Defendant's remaining arguments do not warrant extended discussion. With respect toCounty Court's charge to the jury, there is no question that County Court charged the jury as toeach of the elements of criminal possession of a weapon in the second degree (see PenalLaw § 265.03 [3]) and, further, defined the term "assault weapon" (seePenal Law § 265.00 [22] [a] [ii]) in conjunction therewith. Defendant now faultsCounty Court for failing to further define the term "semiautomatic"—one of the termsused to define an assault weapon under Penal Law § 265.00 (22). Althoughdefendant initially requested that County Court follow the Criminal Jury Instructions as to thedefinition of an assault weapon, when County Court pointed out that such instructions did notcomport with the current law and asked defense counsel for a specific request to charge, defensecounsel stated, "I have no specific request to make, Judge"—indicating that he wouldleave the matter to the discretion of the court. At the conclusion of the court's charge, defensecounsel stated that he had no further requests to charge or exceptions thereto. "[I]nasmuch asdefendant did not object to the charge that was given or request different [or additional]language, this issue is unpreserved for our review, and we decline defendant's invitation to setaside the jury's verdict in the interest of justice" (People v Davis, 133 AD3d 911, 914 [2015] [internal quotationmarks and citations omitted]). In any event, even "a court's failure to provide requestedstatutory definitions" does not constitute reversible error in all circumstances (People v Medina, 18 NY3d 98,104 [2011] [emphasis added]), and, here, we are satisfied that the court's "charge, taken as awhole, conveyed to the jury the correct standard" (People v Gibson, 121 AD3d 1416, 1419 [2014] [internal quotationmarks and citations omitted], [*5]lv denied 24 NY3d1119 [2015]).[FN5]
Finally, we discern no basis upon which to either resentence defendant or modify thesentence imposed in the interest of justice. Although defendant argues that he was denied dueprocess at the time of sentencing because County Court posed certain questions to him during hisstatement to the court, defendant raised no objection in this regard at the time of sentencing and,therefore, this issue is unpreserved for our review (cf. People v Wallace, 29 AD3d 1085, 1085 [2006], lvdenied 7 NY3d 796 [2006]). More to the point, we do not find that defendant was deprivedof his right to make a statement. As to the sentence actually imposed, while defendant indeedreceived the maximum, "a sentence that falls within the permissible statutory range will not bedisturbed unless it can be shown that the sentencing court abused its discretion or thatextraordinary circumstances exist warranting a modification in the interest of justice" (People v Cole, 150 AD3d 1476,1482 [2017] [internal quotation marks, brackets and citations omitted]). Here, defendant'ssentence fell within the permissible statutory range and, upon taking into account defendant'sprior criminal history and actions on the morning in question, which included indiscriminatelywaving and pointing a loaded firearm at a group of people and thereafter engaging in a gunfightin close proximity to an apartment complex, we find no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence. Defendant's remaining contentions, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Peters, P.J., McCarthy, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The indictment was amended atdefendant's arraignment to reflect that count 3 thereof should have charged defendant with onecount of criminal possession of a weapon in the third degree.
Footnote 2:Indeed, defendant's cousintestified at trial that he and the mother of his child had just moved into the apartment on June 2,2014 and that defendant had been in and out of the apartment only briefly in the hours leading upto the shooting.
Footnote 3:Defendant's pro seclaim—that he denied his right of confrontation due to the fact that the mother of hiscousin's child did not testify at the suppression hearing—is unpreserved for our review.
Footnote 4:Excluded from the definition ofan assault weapon is "any rifle, shotgun or pistol that (A) is manually operated by bolt, pump,lever or slide action; (B) has been rendered permanently inoperable; or (C) is an antique firearm"as defined under the United States Code (Penal Law § 265.00 [22] [g] [i]).
Footnote 5:We note in passing that even thecurrent version of the Criminal Jury Instructions does not expressly require that the term"semiautomatic" be defined—noting only that, when a defendant is charged withpossessing an assault weapon, the applicable provisions of Penal Law § 265.00 (22)should be charged (see CJI2d[NY] Penal Law § 265.03 [3]; CJI2d[NY]Additional Charges).