| People v Thomas |
| 2017 NY Slip Op 07647 [155 AD3d 1120] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v GavinThomas, Appellant. |
Cheryl Coleman Law Offices, Albany (Kathryn E. Conklin of counsel), for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered November 18, 2015, 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 September 2014, the City of Albany Police Department commenced an investigation intodefendant upon receipt of a complaint from a female victim that he had approached her in amotor vehicle and threatened her with a firearm. The victim identified defendant in a photo arrayand provided the police with a description of defendant's vehicle. Shortly thereafter, policelocated defendant's vehicle, executed a traffic stop and took defendant into custody for certaincharges resulting from the stop. While defendant remained in custody, detectives successfullyapplied for and executed a search warrant on defendant's first-floor apartment located at 202Jefferson Street in the City of Albany wherein they seized, among other things, a semiautomaticpistol and a Taurus .38 revolver. As a result, defendant was ultimately charged in a four-countsuperceding indictment with two counts of criminal possession of a weapon in the second degree,criminal possession of a weapon in the third degree and menacing in the second degree.
Defendant thereafter moved to suppress the seized weapons on the ground that the searchwarrant was defective inasmuch as it failed to describe with sufficient particularity the premisesto be searched. Following a hearing, County Court denied the motion. Defendant then sought ajudicial subpoena duces tecum ordering the Albany Police Department to produce, among otherthings, the personnel records of Scott Gavigan, a detective involved in the search of defendant'sresidence. The City of Albany thereafter moved to quash the subpoena and, following a hearing,County Court granted the motion. Following a jury trial, defendant was convicted of two countsof criminal possession of a weapon in the second degree and one count of criminal possession ofa weapon in the third degree. Defendant's motion to set aside the verdict pursuant to CPL 330.30(1) was subsequently denied and he was thereafter sentenced, as a second violent felony offender,to 15 years in prison to be followed by five years of postrelease supervision for each convictionof criminal possession of a weapon in the second degree and a concurrent prison sentence of3
Initially, we are unpersuaded by defendant's contention that the search warrant executed onhis residence was fatally defective for failing to describe the premises to be searched withsufficient particularity. While particularity of a search warrant is certainly required, "[t]his doesnot mean that hypertechnical accuracy and completeness of description must be attained butrather, from the standpoint of common sense, that the descriptions in the warrant and itssupporting affidavits be sufficiently definite to enable the searcher to identify the persons, placesor things that the Magistrate has previously determined should be searched or seized" (Peoplev Nieves, 36 NY2d 396, 401 [1975] [citations omitted]; accord People v Carpenter, 51 AD3d 1149, 1149-1150 [2008],lv denied 11 NY3d 786 [2008]). Here, the search warrant directed police officers tosearch "[t]he residence of 202 Jefferson Street, Albany, NY, to include all stairways, attics,basements, yards and sheds" and specified that the residence was a "two-story brickfrontapartment duplex building with a blue door." Although the warrant was facially deficient to theextent that it failed to specify whether detectives were to search the upstairs or downstairsapartment of the two-unit duplex (seee.g. People v Mitchell, 57 AD3d 1232, 1233 [2008], lv denied 12 NY3d 760[2009]; People v Henley, 135 AD2d 1136, 1136 [1987], lv denied 71 NY2d 897[1988]), the imprecise description did not invalidate the search inasmuch as the affidavit insupport of the search warrant specifically identified the apartment to be searched as"[defendant's] residence" (see People v Wallace, 238 AD2d 807, 808-809 [1997], lvdenied 90 NY2d 865 [1997]; People v Davenport, 231 AD2d 809, 810 [1996], lvdenied 89 NY2d 921 [1996]) and, upon execution, the detectives were able "to readilyascertain and identify the target premises with reasonable and minimal effort" (People vMitchell, 57 AD3d at 1233; see People v Lavin, 220 AD2d 886, 887 [1995], lvdenied 87 NY2d 904 [1995]; People v Fahrenkopf, 191 AD2d 903, 903[1993]).[FN*] Nor do wefind that the police officer's use of defendant's key to enter the residence otherwise rendered thesearch invalid (see generally People v Binns, 299 AD2d 651, 652-653 [2002], lvdenied 99 NY2d 612 [2003]).
We likewise find no error in County Court granting the City's motion to quash a judicialsubpoena duces tecum directing the Albany Police Department to disclose Gavigan's personnelrecord. "The personnel records of police officers, including documents pertaining to misconductor violations of rules, are confidential and are not subject to inspection or review . . .'except as may be mandated by lawful court order' " (People v Johnson, 150 AD3d 1390, 1391 [2017], lv denied29 NY3d 1128 [2017], quoting Civil Rights Law § 50-a [1]). Accordingly, it is theburden of the party seeking disclosure to demonstrate some good faith, factual predicatewarranting the intrusion (see People vDarrell, 145 AD3d 1316, 1319 [2016], lv denied 29 NY3d 1125 [2017];People v Harris, 121 AD2d 788, 789 [1986], lv denied 68 NY2d 770[1986]).
Here, the allegations set forth in defense counsel's supporting affidavit failed to establish anygood faith, factual basis supporting the request for a subpoena and, instead, constituted theconsummate fishing expedition for collateral materials to be used for impeachment purposes(see People v Darrell, 145 AD3d at 1319; see also People v Gissendanner, 48NY2d 543, 550-551 [1979]; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833,834 [2001], lv denied 96 NY2d 710 [2001]). In any event, County Court indicated that ithad conducted an in camera review of Gavigan's personnel file and discovered nothing that couldbe used to impeach his credibility. Nor do we find that County Court abused its discretion inlimiting cross-examination of Gavigan with regard to such collateral matters (see People v Serrano-Gonzalez, 146AD3d 1013, 1015 [2017], lv denied 29 NY3d 952 [2017]; People v Williamson, 77 AD3d1183, 1184-1185 [2010]; see alsoPeople v Cato, 5 AD3d 394, 394 [2004], lv denied 2 NY3d 797 [2004]).
Next, defendant's contention that County Court erred in denying his Batson challengeis unavailing. Pursuant to the three-step Batson framework, the moving party bears theburden of establishing a prima facie case of discrimination in the exercise of peremptorychallenges (see People v Hecker, 15NY3d 625, 634 [2010], cert denied 563 US 947 [2011]; People v Smocum,99 NY2d 418, 420 [2003]; People vMorris, 140 AD3d 1472, 1476 [2016], lv denied 28 NY3d 1074 [2016]). Uponmaking a prima facie case of discrimination, the burden shifts "to the nonmoving party to providea race-neutral explanation for the removal of the prospective juror" (People v Anthony, 152 AD3d1048, 1049-1050 [2017] [internal quotation marks and citation omitted]). Here, defendant'sinitial Batson objection was raised after the People used peremptory challenges to removethe only two African Americans from the first jury panel. The People, however, providedsufficient facially neutral explanations for each of the challenged jurors. The People explainedthat juror No. 2 was challenged because, among other things, her father worked in a correctionalfacility and she had an ex-boyfriend who had been convicted of a robbery (see People v Acevedo, 141 AD3d843, 846 [2016]). The People indicated that they challenged juror No. 11 because, amongother things, he had made statements indicating a possible inability to follow the law and basedupon his involvement in the ministry. Upon further inquiry, County Court denied the motion,indicating that the challenges were not pretextual (see People v Green, 141 AD3d 1036, 1040 [2016], lvdenied 28 NY3d 1072 [2016]). Further, to the extent that defendant renewed hisBatson challenge following the third round of jury selection by stating, in conclusoryfashion, that he "renew[ed] [his] Batson challenge," he "failed to articulate any other factsor relevant circumstances to establish a prima facie case of discrimination[; accordingly,] theburden did not shift to the People to offer a facially neutral explanation for the challenge"(People v Anthony, 152 AD3d at 1050; see People v Hunt, 50 AD3d 1246, 1247 [2008], lv denied11 NY3d 789 [2008]).
We also find unavailing defendant's contention that he was deprived of a fair trial as a resultof various instances of prosecutorial misconduct during the People's summation. Althoughdefendant argues that the prosecutor impermissibly shifted the burden of proof on multipleoccasions, the record reflects that County Court sustained many of defendant's objections in thisregard and, where appropriate, issued timely curative instructions, reminding the jury that thePeople alone carried the burden of proving defendant's guilt beyond a reasonable doubt (see People v Ressy, 141 AD3d839, 842-843 [2016], lv denied 28 NY3d 1030 [2016]). Further, inasmuch as thechallenged comments largely constituted a fair comment on the evidence or were responsive tostatements made by defense counsel during summation, we find that the cumulative effect of thechallenged comments was not so prejudicial as to deny defendant his fundamental right to a fairtrial (see People v Scippio, 144AD3d 1184, 1187-1188 [2016], lv denied 28 NY3d 1150 [2017]).
Finally, with respect to defendant's claim that his sentence is harsh and excessive, we find noextraordinary circumstances or any abuse of discretion warranting a reduction of the sentence inthe interest of justice (see People vMalloy, 152 AD3d 968, 971 [2017]). "The mere fact that a sentence imposed after trialis greater than that offered in connection with plea negotiations is not proof positive thatdefendant was punished for asserting his right to trial" (People v Peart, 141 AD3d 939, 942 [2016] [internal quotationmarks and citations omitted], lv denied 28 NY3d 1074 [2016]; see People v Watson, 150 AD3d1384, 1387 [2017], lv denied 29 NY3d 1135 [2017]). In consideration of the natureof the crime and defendant's criminal history, which included a prior felony conviction for aweapon charge, we discern no basis upon which to reduce the sentence imposed (see People v Criss, 151 AD3d1275, 1281 [2017]; People vDale, 115 AD3d 1002, 1007 [2014]).
Garry, J.P., Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Specifically, while executing thesearch warrant, detectives knocked on the door of the upstairs unit of the duplex and wereinformed by its occupant that it was not defendant's residence. In turn, detectives did not searchthe upstairs unit. This reasonable and minimal inquiry at the site served to verify the location ofdefendant's residence and alleviate any confusion over which unit was authorized to be searched(see People v Lopez, 266 AD2d 735, 736-737 [1999], lv denied 94 NY2d 922[2000]).