| People v Gangar |
| 2010 NY Slip Op 09021 [79 AD3d 1262] |
| December 9, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jayvon Gangar,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady, for respondent.
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered January 13, 2009, upon a verdict convicting defendant of the crimes of criminal possession ofa weapon in the second degree (six counts), tampering with physical evidence (five counts) andobstructing governmental administration in the second degree.
As a result of an incident in which defendant and two others engaged in a shootout with anotherindividual at an apartment complex in the City of Schenectady, Schenectady County and then engagedin a three-hour standoff with the police, defendant and three codefendants were charged in a 26-countindictment with various crimes.[FN*]Following a jury trial, defendant was found guilty of six counts of criminal possession of a weapon in thesecond degree, five counts of tampering with physical evidence and one count of obstructinggovernmental administration in the second degree. He was thereafter sentenced to an aggregate prisonterm of 17
Initially, defendant challenges both the legal sufficiency and theweight of the evidence supporting the judgment of conviction. Among other evidence, codefendantJuanita Mayben testified at trial that she observed defendant in possession of a .357 caliber revolver thenight before the shootout and in possession of a weapon during the incident. Contrary to defendant'sassertions, Mayben's testimony was sufficiently corroborated by other evidence at trial that tended toconnect him to the crime (see CPL 60.50; People v Reome, 15 NY3d 188, 191-192 [2010]) and was notinherently unreliable because she testified pursuant to a cooperation agreement (see People v Thompson, 75 AD3d760, 763 [2010]). Testimony at trial also established that, after the shooting, defendant andcodefendants Akeem Ulmer and Keith Payne retreated to the apartment located at 225 Frank Street.When the police arrived, Payne and defendant repeatedly refused the police officers' requests to exitthe apartment and engaged in a three-hour standoff. During the standoff, police officers situated in theapartment under 225 Frank Street heard something heavy being moved and a subsequent search of225 Frank Street yielded a .22 caliber revolver, a .22 caliber semiautomatic pistol and a .357 caliberrevolver, which were found hidden under the refrigerator. The police also discovered live and spentammunition in and around the toilet. Finally, while in police custody, defendant communicated with hiscodefendants and specifically discussed the hiding of the .357 caliber revolver. Viewed in the light mostfavorable to the People, we find legally sufficient evidence in the record to support the findings thatdefendant, acting either as a principal or as an accessory (see Penal Law § 20.00;People v Thompson, 75 AD3d at 765), physically or constructively possessed a loadedweapon with the intent to use the same against another (see Penal Law § 265.03 [1] [b];People v Carter, 60 AD3d 1103,1106 [2009], lv denied 12 NY3d 924 [2009]), and possessed the same outside his home orbusiness (see Penal Law § 265.03 [3]), tampered with physical evidence by means ofconcealment (see Penal Law § 215.40 [2]) and obstructed governmental administration(see Penal Law § 195.05). Further, assuming a different verdict would not have beenunreasonable, viewing the evidence in a neutral light and deferring to the jury's credibilitydeterminations, we are not convinced that the verdict is against the weight of the evidence (seePeople v Bleakley, 69 NY2d 490, 495 [1987]).
Nor are we convinced that County Court abused its discretion in permitting the People tocross-examine defendant about his prior conviction of criminal sale of a controlled substance in the thirddegree, which indicates defendant's willingness to put his own interests ahead of society's. Because thecourt appropriately mitigated the potential prejudice to defendant by prohibiting the People frominquiring into the facts underlying the conviction, the Sandoval ruling was proper (see People v Peele, 73 AD3d 1219,1220 [2010]).
Next, we are not persuaded that defendant was denied the effective assistance of counsel.Contrary to defendant's contention, trial counsel's failure to make a pretrial motion, even a potentiallymeritorious one, does not necessarily constitute ineffective assistance (see People v Rivera, 71NY2d 705, 709 [1988]). Moreover, the record reflects that counsel provided meaningfulrepresentation to defendant by, among other things, effectively cross-examining witnesses andaggressively pursuing a reasonable defense to the charges.
Finally, defendant's remaining contentions, including his claims that County Court erred by allowingthe jury to view videotape footage of him in the police interview room and footage of his arrest, and thathis sentence is harsh and excessive, have been considered and found to be unpersuasive.
Mercure, J.P., Peters, Rose and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote *: This Court recently modified thejudgment of conviction of codefendant Keith Payne (People v Payne, 71 AD3d 1289 [2010], lv denied 15 NY3d777 [2010]).