| People v Gabriel |
| 2017 NY Slip Op 08409 [155 AD3d 1438] |
| November 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v MichaelGabriel, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered April 17, 2015, upon a verdict convicting defendant of the crime of criminal possessionof a weapon in the second degree.
Defendant was charged in an indictment with criminal possession of a weapon in the seconddegree stemming from an incident where police detectives, after a traffic stop, found a loadedhandgun in a vehicle driven by defendant's girlfriend and in which defendant was a passenger.Defendant moved to suppress the seized handgun and the videotaped interview with thedetectives wherein he admitted that the handgun was his. After a suppression hearing, CountyCourt denied the motion and, following a jury trial, defendant was convicted as charged. CountyCourt subsequently sentenced defendant, as a second violent felony offender, to a prison term of15 years, followed by five years of postrelease supervision. Defendant appeals. We affirm.
Defendant's contention that the evidence was not legally sufficient to support the convictionis not preserved for our review in light of his general motion to dismiss made at the close of thePeople's proof (see People v Morris,140 AD3d 1472, 1472 [2016], lv denied 28 NY3d 1074 [2016]; People v Coleman, 144 AD3d1197, 1198 [2016]; People vBrown, 139 AD3d 1178, 1178 [2016]). Because defendant also argues that the verdictwas against the weight of the evidence—a claim not subject to preservationrequirements—we consider whether the [*2]proof wasadequate to establish each element of the charged crime (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Montford, 145 AD3d1344, 1345 [2016], lv denied 29 NY3d 999 [2017]; People v Tompkins, 107 AD3d1037, 1038 [2013], lv denied 22 NY3d 1044 [2013]). Inasmuch as an acquittalwould not have been unreasonable, we weigh the probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony (see People v Bullock, 145 AD3d1104, 1105 [2016]; People vScippio, 144 AD3d 1184, 1185 [2016], lv denied 28 NY3d 1150 [2017]). Asrelevant here, "[a] person is guilty of criminal possession of a weapon in the second degree when. . . such person possesses any loaded firearm" outside his or her "home or place ofbusiness" (Penal Law § 265.03 [3]).
At trial, Detective Kevin Meehan testified that he was surveilling defendant and, asdefendant left a residence, he observed him securing his jacket in an unusual manner and that hiswaistline appeared "off balance for the type of coat he had on." Defendant entered the frontpassenger side of a vehicle that was being driven by his girlfriend. The vehicle was subsequentlystopped after Meehan observed defendant's girlfriend make a U-turn over a double solid line.Detective Timothy Haggerty, who arrived at the scene to provide assistance, testified that, afterthe traffic stop, he removed defendant from the vehicle. Haggerty conducted a search of thevehicle and found a handgun. He advised a forensic detective about the discovered handgun andtook defendant to the police station. At the station, after another detective advised defendant ofhis Miranda rights, Haggerty interviewed defendant and stated that defendant admittedthat the handgun belonged to him.[FN*] Viewing the evidence in a neutral light, wecannot say that the verdict was against the weight of the evidence (see People v Gunn, 144 AD3d1193, 1194 [2016], lv denied 28 NY3d 1145 [2017]; People v Martin, 136 AD3d 1218,1219 [2016], lv denied 28 NY3d 972 [2016]; People v Oliver, 135 AD3d 1188, 1191 [2016], lv denied 27NY3d 1003 [2016]). To the extent that defendant questioned the veracity of the detectives anddenied, at trial, that the gun was his, we defer to the jury's resolution of credibility issues (see People v Novak, 148 AD3d1352, 1356 [2017], lv denied 29 NY3d 1084 [2017]; People v Valverde, 122 AD3d1074, 1077 [2014], lv denied 27 NY3d 970 [2016]).
We disagree with defendant's claim that County Court's suppression ruling regarding theseized handgun was erroneous. Initially, we find that the traffic stop of the vehicle in whichdefendant was a passenger was lawful based upon Meehan's suppression hearing testimony thathe observed defendant's girlfriend cross over a double solid line and make a U-turn (see People v Kindred, 100 AD3d1038, 1039 [2012], lv denied 21 NY3d 913 [2013]). We also find that Haggerty'sinventory search was proper. Haggerty testified at the suppression hearing that it was discoveredat the traffic stop that the driver's license of defendant's girlfriend was suspended. Upon suchdiscovery, both defendant and his girlfriend were asked to exit the vehicle and were handcuffed.According to Haggerty, under the City of Albany Police Department's standard operatingprocedures, the vehicle had to be towed because defendant's girlfriend was not allowed to drive itin light of her suspended driver's license. Furthermore, under the standard operating procedures,when a vehicle is to be towed, an inventory search is to be conducted and an inventory report isto be prepared documenting the contents of the vehicle to ensure the protection of the vehicleowner's or occupant's property. Haggerty stated that an officer did not have the discretion underthe standard operating procedures to determine whether to conduct an inventory search. As partof the inventory search, which Haggerty testified was complied with, Haggerty found a loadedhandgun in the front seat area of the vehicle. Defendant and his girlfriend were thereafter arrestedand brought to the police station by Haggerty. Another police [*3]officer at the scene was directed to finish the inventory search.
In view of the written standard operating procedures described by Haggerty and his testimonystating that they were followed and did not provide for any discretion to the officers, we concludethat the inventory search was proper (seePeople v Boler, 106 AD3d 1119, 1122-1123 [2013]; see generally People v Lee, 29 NY3d 1119, 1120 [2017]). Contraryto defendant's contention, law enforcement officials at the traffic stop were not obligated toinquire whether defendant was able to drive the vehicle once they learned that defendant'sgirlfriend had a suspended license (seePeople v Walker, 20 NY3d 122, 125 [2012]). Furthermore, even though defendant wasonly a passenger and not the operator of the vehicle who committed the traffic violation, thepolice were authorized to direct defendant to exit the vehicle at the traffic stop (see People vRobinson, 74 NY2d 773, 775 [1989], cert denied 493 US 966 [1989]; People vMurray, 58 AD3d 1073, 1075 [2009], lv denied 12 NY3d 786 [2009]). While theinventory report was not admitted into evidence at the suppression hearing because it could notbe located, such omission, although troubling, is not fatal under the circumstances of this case.The officer who prepared the inventory report testified that he completed one and was, in fact,"very confident" that he did so. The officer also conducted his own inventory search afterHaggerty's initial search and explained that he started at the front of the car and worked his wayto the rear, "recording anything that was in the car from child's clothing and toys, to CDs,lighters, things of that nature." The officer likewise stated that he did not have the discretion todetermine what items would be listed in the inventory report and that it would "show everythingthat was either taken out of the vehicle or still in the vehicle." County Court credited this officer'stestimony, finding him "truthful," and we accord great deference to the court's credibilitydeterminations (see People vWilliams, 144 AD3d 1204, 1206 [2016]). As such, under the circumstances of this case,County Court properly denied the motion to suppress (see People v Pompey, 63 AD3d 612, 612-613 [2009], lvdenied 13 NY3d 861 [2009], cert denied 559 US 1051 [2010]; People vBlack, 250 AD2d 494, 494 [1998], lv denied 92 NY2d 922 [1998]).
Defendant also argues that his videotaped statement in which he admitted that the gun washis should have been suppressed. We disagree. Haggerty's suppression hearing testimony revealsthat he interviewed defendant at the police station and, after being advised of his Mirandarights, defendant, on his own, admitted to possessing the gun and bringing it into the vehicle.Inasmuch as the record indicates that defendant's admissions were spontaneous and not theproduct of coercion or deception, we find no error in County Court's denial of that part ofdefendant's motion seeking to suppress his videotaped statements (see People v Warrington, 146 AD3d1233, 1234-1235 [2017], lv denied 29 NY3d 1038 [2017]; People v DeAngelo, 136 AD3d1119, 1120 [2016]).
Finally, we find no merit in defendant's assertion that the sentence was harsh and excessivebecause it was greater than what was offered by the People during pretrial negotiations (see People v Stacconi, 151 AD3d1395, 1398 [2017]). Sentencing rests in the sound discretion of the trial court, and we see noabuse of discretion or extraordinary circumstances warranting a reduction of the imposedsentence in the interest of justice (seePeople v Criss, 151 AD3d 1275, 1281 [2017], lv denied 30 NY3d 979 [2017]; People v Gunn, 144 AD3d at 1196).
Peters, P.J., Garry, Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:The People introduced intoevidence a video of defendant's interview.