| People v Leach |
| 2011 NY Slip Op 09671 [90 AD3d 1073] |
| December 27, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tawond Leach, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,and Terry-Ann Llewellyn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.),rendered October 29, 2009, convicting him of attempted assault in the first degree (two counts),criminal possession of a weapon in the second degree, and reckless endangerment in the firstdegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,pursuant to a stipulation in lieu of motion, of the suppression of physical evidence.
Ordered that the judgment is affirmed.
Shortly before 7:00 P.M. on March 20, 2008, the defendant, Tawond Leach, and hiscodefendant and brother, Derek Leach, fired guns at the complainants Arthur Hill and StevenHill, who were sitting with their brother in a sports utility vehicle (hereinafter the SUV) neartheir apartment building on DeKalb Avenue in Brooklyn; other relatives of the Hills werestanding near the SUV. At trial, both Arthur Hill and Steven Hill testified that the defendant hadfired a silver revolver. After the shooting, Steven Hill informed the police that the defendant andthe codefendant were the shooters, and that they lived in an apartment across the street. StephenHill also identified the apartment number. The police went to the apartment indicated, which theysoon learned belonged to the grandmother of the defendant and the codefendant. The policefound a loaded, silver revolver in what the grandmother testified was the guest room of theapartment; she did not recall the last time the guest room had been used. Although the defendanthad been staying in another room of the apartment, the grandmother was the only person with akey to the apartment. The Supreme Court denied suppression of the gun, finding that thedefendant had no standing to object to the search of the guest room in his grandmother'sapartment.
Where a defendant seeks to suppress physical evidence, "the People bear the burden of goingforward to establish the legality of police conduct in the first instance" (People v Hernandez, 40 AD3d777, 778 [2007]). The "credibility determinations of a hearing court are entitled to greatdeference on appeal, and will not be disturbed unless clearly unsupported by the record"(People v McCovey, 281 AD2d 644 [2001]; see People v Prochilo, 41 NY2d 759,761 [1977]). Here, the Supreme Court properly found that exigent circumstances justified thepolice entry into the apartment without first obtaining a warrant (see Payton v New York,445 US 573 [1980]; People v Torres, 140 AD2d 564, 565 [1988]). The Supreme Courtalso properly concluded that, on the record presented, the [*2]defendant had no standing to object to the search that uncovered thesilver revolver because he had no reasonable expectation of privacy in the guest room of hisgrandmother's apartment (see People v Ortiz, 190 AD2d 580 [1993], affd 83NY2d 840 [1994]; People v Garrett, 177 AD2d 705, 705-706 [1991]; cf. People vRamos, 206 AD2d 260, 261 [1994]).
The silver revolver was admitted into evidence as the gun that the defendant used incommitting the crimes charged in the indictment, and on the issue of the defendant's identity asone of the shooters. Contrary to the defendant's contention, the Supreme Court did not err inadmitting the gun into evidence although the gun was also evidence of an uncharged crime ofcriminal possession of a weapon in the fourth degree, which is committed by possessing thefirearm in a location different from that where the crimes which were the subject of theindictment were committed (see Penal Law § 265.01 [1]). Although evidence ofother crimes is inadmissible if offered only to raise an inference of the defendant's criminaldisposition, it may be admitted for a relevant purpose, such as evidence of the defendant'sidentity as the person who committed the crime charged (see People v Vails, 43 NY2d364, 368 [1977]; People v Molineux, 168 NY 264, 293 [1901]). Here, the Supreme Courtproperly admitted the gun as evidence of the defendant's identity as one of the shooters, and thetrial court's limiting instructions effectively prevented any undue prejudice (see People vGordon, 308 AD2d 461 [2003]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85[1982]).
The defendant's remaining contentions are without merit. Angiolillo, J.P., Dickerson, Lottand Miller, JJ., concur.