| People v Stepney |
| 2012 NY Slip Op 02199 [93 AD3d 1297] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DonnellStepney, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered June9, 2010. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the second degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]) and assault in thesecond degree (§ 120.05 [3]), defendant contends that County Court erred in failing toexcuse for cause a prospective juror who stated that he had a friend who was a former policeofficer and that he would probably be more likely than not to credit the testimony of lawenforcement officials. By failing to raise that challenge in the trial court, however, defendantfailed to preserve it for our review (see CPL 470.05 [2]; People v Chatman, 281AD2d 964, 964-965 [2001], lv denied 96 NY2d 899 [2001]). We reject defendant'sfurther contention that the court's failure to discharge the prospective juror sua sponte constitutesa mode of proceedings error that does not require preservation (see generally People vRosen, 96 NY2d 329, 335 [2001], cert denied 534 US 899 [2001]). In any event,even if defendant had challenged the prospective juror on that ground and his challenge hadmerit, it nevertheless would not be properly before us because he failed to exhaust hisperemptory challenges prior to the completion of jury selection (see CPL 270.20 [2]; People v Arguinzoni, 48 AD3d1239, 1241 [2008], lv denied 10 NY3d 859 [2008]; cf. People v Lynch, 95NY2d 243, 248 [2000]).
To the extent that defendant contends that defense counsel was ineffective for failing tochallenge the prospective juror, we note that the transcript of voir dire shows that one or moreunidentified prospective jurors on the same panel as that prospective juror made comments thatcould be construed as being highly favorable to the defense, and it is possible that the prospectivejuror in question made some of those comments. We thus conclude that defendant "failed toshow the absence of a strategic explanation for defense counsel's" failure to challenge thatprospective juror (People v Mendez,77 AD3d 1312, 1312-1313 [2010], lv denied 16 NY3d 799 [2011]; see People vBenevento, 91 NY2d 708, 712-713 [1998]). "[M]ere disagreement with trial strategy isinsufficient to establish that defense counsel was ineffective" (People v Henry, 74 AD3d 1860,[*2]1862 [2010], lv denied 15 NY3d 852 [2010]).
By making only a general motion for a trial order of dismissal, defendant failed to preservefor our review his contention that the evidence is legally insufficient to establish his commissionof either crime charged (see People v Gray, 86 NY2d 10, 19 [1995]; People v Washington, 89 AD3d1516, 1517 [2011]). "However, we necessarily review the evidence adduced as to each of theelements of the crimes in the context of our review of defendant's challenge regarding the weightof the evidence" (People v Caston,60 AD3d 1147, 1148-1149 [2009]; see People v Danielson, 9 NY3d 342, 349-350 [2007]; People v Francis, 83 AD3d 1119,1120 [2011], lv denied 17 NY3d 806 [2011]; People v Loomis, 56 AD3d 1046, 1046-1047 [2008]). Wenevertheless conclude that, viewing the evidence in light of the elements of the crimes as chargedto the jury, the People proved beyond a reasonable doubt all elements of the crimes charged(see Danielson, 9 NY3d at 349; see generally People v Bleakley, 69 NY2d 490,495 [1987]).
With respect to the weapon conviction, the People proved that defendant constructivelypossessed the loaded firearm found in the vehicle in which he was a passenger. The firearm wasfound by the police on the floorboard in the vehicle directly beneath the location where defendantwas seated, and the firearm was adjacent to a blank gun that defendant admittedly owned.Although defendant's fingerprints were not found on the loaded firearm, they were also not foundon the blank gun that he undisputedly possessed. The fact that the codefendant's fingerprint wasfound on the loaded gun does not preclude the possibility that defendant possessed it as well,inasmuch as "more than one person may possess an object simultaneously" (People vMyers, 265 AD2d 598, 600 [1999]).
With respect to the assault conviction, we conclude that the People proved beyond areasonable doubt that defendant intended to prevent the arresting officer from performing alawful duty when the officer injured his knee (see Penal Law § 120.05 [3]).Although defendant contends that the arresting officer was not engaged in a lawful duty when heattempted to frisk him, the suppression court determined following a hearing that the officeracted lawfully during every step of his encounter with defendant, and defendant does notchallenge the suppression ruling on appeal. Because the evidence at trial was consistent with thatpresented at the suppression hearing, we perceive no basis for overturning the assault convictionon the grounds advanced by defendant.
Defendant failed to preserve for our review his contention that the court erred in admitting inevidence a postarrest photograph of him depicting him in handcuffs and shirtless. In any event,the photograph was relevant and admissible to show defendant's condition at the time of hisarrest (see People v Logan, 25 NY2d 184, 195 [1969], cert denied 396 US 1020[1970], rearg dismissed 27 NY2d 733 [1970], rearg denied 27 NY2d 737 [1970];People v Lakram, 207 AD2d 360, 361 [1994], lv denied 84 NY2d 1034 [1995],86 NY2d 737 [1995]). We have reviewed defendant's remaining contentions and conclude thatthey are without merit. Present—Smith, J.P., Fahey, Lindley and Martoche, JJ.