| People v Knox |
| 2011 NY Slip Op 00109 [80 AD3d 887] |
| January 13, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Eric A. KnoxJr., Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered May 15, 2009, (1) upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the second degree, and (2) convicting defendant upon his plea ofguilty of the crime of rape in the second degree.
While defendant was at a motel, a female friend saw him with a handgun inside his room.She reported this to the police, who obtained a search warrant and retrieved the gun from adrawer in the room. Defendant was indicted for criminal possession of a weapon in the seconddegree. Due to an unrelated situation where defendant had sexual contact with a 14-year-old girl,a grand jury handed up a separate four-count indictment.
At a trial on the first indictment, the jury found defendant guilty of the sole charge. He thenpleaded guilty to rape in the second degree in satisfaction of the second indictment, with anagreed-upon sentence that would run concurrently with his sentence on the first indictment.Defendant was thereafter sentenced to an aggregate prison term of eight years with five years ofpostrelease supervision, and he now appeals.
The evidence at trial was legally sufficient and the jury's verdict was not against the [*2]weight of the evidence. Forensic reports proved that the weaponwas operable and defendant's DNA was present on the gun. A police officer who executed thesearch warrant testified that the gun, which was loaded, was located in a drawer in defendant'sroom. A motel employee testified and produced a receipt showing that defendant checked in tothe room that day and paid for one night. The female friend testified that while in the room withdefendant, he pulled the gun out of his waistband, showed it to her, then put it in a drawer. ThePeople also introduced taped telephone conversations in which defendant expressed surprise thathis fingerprints were not found on the weapon, and he discussed who was aware that he had aweapon and could have turned him in to the police. This evidence was legally sufficient tosupport the charge (see Penal Law § 265.03 [3]).
Defendant testified that a male friend was in the motel room with him and the female friendand this other male—not defendant—removed the gun from his waistband.Defendant admitted that he handled the gun and that he put the gun in the drawer only because herefused to allow the male friend to travel in his car with the gun; the friend was leaving the gunthere temporarily and would retrieve it later. A forensic report showed that defendant'sfingerprints were not on the gun and the only viable fingerprint belonged to his male friend.Defendant presented proof that he was evicted from his grandmother's house, spent one night inhis car, two nights in a motel, and then registered for one night in the motel where the gun wasfound. He testified that he planned to stay in this motel for more than one night, considered it hishome at the time, and initially registered for one night only because he did not then have a creditcard or enough money to register for multiple nights. He also testified, however, that he intendedto apply for housing assistance at the local social services agency that day. Considering thisproof, and giving deference to the jury's credibility determinations (see People v Heaney, 75 AD3d836, 837 [2010], lv denied 15 NY3d 852 [2010]), the weight of the evidencesupports the findings that defendant possessed a loaded and operable weapon in a placethat—due to the transient nature of his stay—was not his home or business (seePeople v Brown, 115 AD2d 791, 793 [1985], lv denied 67 NY2d 880 [1986]).
Defendant's plea to the rape charge was voluntary. Because "the duty to register as a sexoffender is a collateral consequence" of a guilty plea, County Court was not required to advisedefendant of that consequence, and the failure to so inform him did not render his pleainvoluntary (People v Wright, 53AD3d 963, 963 [2008], lv denied 11 NY3d 710 [2008]; see People v Coss, 19 AD3d 943,943 [2005], lv denied 5 NY3d 805 [2005]).
Defendant received the effective assistance of counsel. Contrary to defendant's pro searguments, counsel made pretrial motions. Although County Court denied the motion to suppressthe gun or even hold a hearing on that issue, and granted the motion for DNA testing despitecounsel's objection, counsel fulfilled his duty in that regard. Counsel successfully moved topreclude defendant's statements to the police due to the People's failure to serve a timely CPL710.30 notice. His stipulation to admission of the forensic reports, without requiring livetestimony from the fingerprint expert, DNA tester or firearms examiner, could be seen as part ofa valid strategy to avoid dwelling on facts that would almost certainly be established and insteadmaintain his focus on the hotly contested elements of possession and the applicability of thehome exception (see People vYoung, 35 AD3d 958, 961 [2006], lv denied 8 NY3d 929 [2007]; People vRodriguez, 186 AD2d 838, 838 [1992], lv denied 81 NY2d 765 [1992]). Althoughthe defense was unsuccessful, we will not second-guess that reasonable strategy (see People v McCall, 75 AD3d999, 1002 [2010], lv denied 15 NY3d 894 [2010]). Counsel successfully objected tothe scope of the People's rebuttal witnesses, resulting in the limitation of such [*3]testimony. He also aggressively cross-examined the key prosecutionwitness and provided a cogent closing argument. Considering counsel's representation as awhole, defendant received effective assistance (see People v Henry, 95 NY2d 563, 565[2000]).
Defendant's remaining contentions have been reviewed and are lacking in merit.
Cardona, P.J., Spain, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.