| People v McGrew |
| 2013 NY Slip Op 00637 [103 AD3d 1170] |
| February 1, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMichael McGrew, Appellant. |
—[*1] Michael McGrew, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered June 15, 2009. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree and unlawful possession ofmarihuana.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, that part of the omnibus motion seeking suppression of physical evidence isgranted, the indictment is dismissed, and the matter is remitted to Onondaga CountyCourt for further proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him following a jury trial ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3])and unlawful possession of marihuana (§ 221.05), defendant contends that reversalis warranted because the police officer who stopped both defendant and his codefendantprior to their arrest lacked the statutory authority to do so. We agree, and conclude thatCounty Court therefore erred in refusing to suppress the physical evidence obtained as aresult of that illegal stop.
The subject stop occurred in a college parking lot in the Town of DeWitt atapproximately 7:30 p.m. on December 28, 2008. A City of Syracuse police detectiveassigned to a security detail for an athletic event at the college saw codefendant approachthe foyer of its gymnasium. According to the detective, codefendant then turned aroundand started walking back in the direction from which he came. The detective followedcodefendant in his police car, and observed codefendant approach a parked sedan.Codefendant opened the front passenger-side door of the sedan, leaned in, leaned backout, closed the door and proceeded back toward the gymnasium.
At that point, the detective exited his police vehicle and asked to speak tocodefendant, who, according to the detective, smelled of burnt marihuana. Defendantemerged from the car several seconds later and stopped walking when the detectiveasked to speak with him. The [*2]detective thenrecognized that defendant had bloodshot eyes and also smelled of burnt marihuana,which defendant and codefendant admitted to having smoked. After his partner arrivedon the scene, the detective looked into the car with a flashlight to make sure no one elsewas in that vehicle. He saw a small baggie containing a leafy substance in thecompartment of the driver's side door, which he believed to be marihuana. The detective,who detected an odor of unburned marihuana around the car, then asked codefendant anddefendant for consent to search that vehicle. Consent was granted, and the ensuing searchrevealed a loaded revolver on the floor in front of the passenger seat. The detective thencalled the DeWitt police to effect a formal arrest of defendant and codefendant, and thegun and the marihuana were subsequently seized from the vehicle. The parties thereafterstipulated that the events in question occurred more than 100 yards from the boundaryline of the City of Syracuse.
Pursuant to CPL 140.50 (1), "a police officer may [under certain circumstances] stopa person in a public place located within the geographical area of such officer'semployment" (emphasis added), the relevant "geographical area" in this case beingthe City of Syracuse (CPL 1.20 [34-a] [b]). We thus conclude that, under thesecircumstances, the detective lacked statutory authorization to stop and question defendantin the Town of DeWitt (see People v Howard, 115 AD2d 321, 321 [1985];Brewster v City of New York, 111 AD2d 892, 893 [1985]). Moreover, on thesefacts, the detective's violation of CPL 140.50 (1) requires suppression of the evidencederived therefrom, i.e., the gun and the marihuana seized from the car (see People v Greene, 9 NY3d277, 280-281 [2007]). We thus grant that part of defendant's omnibus motionseeking suppression of that physical evidence, dismiss the indictment, and remit thematter to County Court for further proceedings pursuant to CPL 470.45.
As an alternative ground for reversal, defendant contends that the court abused itsdiscretion in rejecting defense counsel's peremptory challenge to a prospective juror.This contention is properly before us (see CPL 470.05 [2]; cf. People vBuckley, 75 NY2d 843, 846 [1990]), and we conclude that it too has merit.
At the outset of jury selection, the court told the attorneys for both defendant andcodefendant that they would have a total of 15 peremptory challenges, with sevenchallenges allocated to defendant and eight to codefendant. Then, consistent withPeople v Alston (88 NY2d 519, 524-529 [1996]), the court determined that theparties could exercise peremptory challenges only to the number of jurors necessary toseat a twelve-person venire. Put differently, the court indicated that the parties wouldconsider prospective jurors in groups of equivalent size to the number of seats to be filledon the jury, and that peremptory challenges would be exercised with respect to each suchgroup.
After the prosecutor exercised his peremptory challenges with respect to the firstgroup of prospective jurors, the court turned to the defenses' peremptory challenges, andtold codefendant's counsel that "this is a combination. Both of you have to agree."Codefendant's attorney indicated that he had talked with defendant's attorney "about mostof these," and proceeded to exercise four peremptory challenges.
The foregoing peremptory challenges were shared with defendant, and the court didnot ask defense counsel about peremptory challenges before proceeding to the next groupof seven prospective jurors under consideration. With respect to that group ofprospective jurors, the prosecutor had exercised one peremptory challenge andcodefendant's attorney had exercised two such challenges before defendant's attorneyindicated that "we," i.e., defendant's attorney and codefendant's attorney, "need to talk asecond." After an off-the-record discussion, codefendant's attorney indicated that "we'regoing to exercise one more peremptory challenge," and proceeded to do so. The courtthen swore the eight jurors that had been selected by that [*3]point, and thereupon recessed for lunch.
Following lunch, the court conducted the voir dire of the next group of prospectivejurors. At the end of that questioning, defendant's attorney indicated that he andcodefendant's attorney "have to share" the juror questionnaires, and that "[i]f one of usobjects to the exercise of peremptory, that person is seated, so we are debating betweenourselves which kind of makes it a little bit more complicated." The court eventuallyentertained challenges to a group of four prospective jurors, at which time the prosecutorexercised one peremptory challenge and codefendant's attorney exercised two. Onceagain, defendant's attorney did not personally exercise any peremptory challenges.
At that point, there were three jurors left to be selected, and the prosecutor andcodefendant's attorney used one and two peremptory challenges, respectively, on thegroup of three prospective jurors before them. Another group of three prospective jurorswas brought before the parties, and codefendant's attorney exercised a peremptorychallenge with respect to one such prospective juror, and asked, "How many do I haveleft[?]" The court, apparently speaking to defendant's attorney, stated that "[y]ou'rekeeping track," and defendant's attorney indicated that there were four remaining defenseperemptory challenges, which the court reduced to three in view of the challenge to thesubject prospective juror.
Codefendant's attorney then attempted to challenge another prospective juror, whowas not part of the group then under consideration. The court refused to accept thechallenge, noting that the particular prospective juror at issue was not part of the subjectgroup. The court thereafter seated the two remaining prospective jurors in that group ofthree.
With one juror remaining to be seated, the court instructed the attorneys to use anychallenges with respect to that new prospective juror. On the prompt of defendant'sattorney, codefendant's attorney challenged the sole prospective juror in that group, anddefendant's attorney then inquired whether one of the prospective jurors from theprevious group of three prospective jurors had been seated. The clerk answeredaffirmatively, and codefendant's attorney complained that "we did not want [thatprospective juror]." The court ignored the further complaint of codefendant's attorneythat the court was proceeding "too fast" through jury selection, and denied the request ofcodefendant's attorney to strike the juror at issue. A 12th juror was subsequently seated,and codefendant's attorney then objected to the presence of the juror at issue on the juryon the ground that proceedings were "just going too fast, I couldn't hear." The courtnoted the objection before swearing the remaining jurors. The record reflects thatapproximately one minute passed between the time at which the juror at issue was seatedand the time at which the jury was sworn.
Under these circumstances, "we can detect no discernable interference or unduedelay caused by [the] momentary oversight [of the attorneys for defendant andcodefendant] that would justify [the court's] hasty refusal to entertain [their] challenge.Accordingly, we conclude that the court's denial of the challenge was an abuse ofdiscretion (see generally Peoplev Steward, 17 NY3d 104 [2011] [trial court's limitation on time given for voirdire held an abuse of discretion]) and, because the right to exercise a peremptorychallenge against a specific prospective juror is a 'substantial right' (People vHamlin, 9 AD2d 173, 174 [1959]), reversal is mandated" (People v Jabot, 93 AD3d1079, 1081-1082 [2012]).
We now turn to defendant's remaining contentions. We reject defendant's contentionsthat the evidence is legally insufficient to support the conviction and that the verdict isagainst the weight of the evidence. His challenge to the legal sufficiency of the evidenceis preserved with respect to the conviction of criminal possession of a weapon in thesecond degree, but not [*4]with respect to the convictionof unlawful possession of marihuana (see People v Gray, 86 NY2d 10, 19[1995]). In any event, defendant's challenge lacks merit (see generally People vBleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in light of the elementsof the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Defendant further contends that reversal is required because he may have beenconvicted upon a theory not charged in the indictment. "Preservation is not requiredinasmuch as '[t]he right of an accused to be tried and convicted of only those crimes andupon only those theories charged in the indictment is fundamental and nonwaivable' "(People v Bradford, 61AD3d 1419, 1420-1421 [2009], affd 15 NY3d 329 [2010]; see People v Boykins, 85AD3d 1554, 1555 [2011], lv denied 17 NY3d 814 [2011]). Nevertheless, wereject that contention. "It is well established that a defendant cannot be convicted of acrime based on evidence of an 'uncharged theory' " (People v Gunther, 67 AD3d 1477, 1478 [2009], quotingPeople v Grega, 72 NY2d 489, 496 [1988]), but here, " 'defendant received therequisite fair notice of the accusations against him' " (People v Abeel, 67 AD3d 1408, 1410 [2009]), and theindictment did not limit the People to a particular theory of possession at trial.
In view of our determination, we do not address defendant's remaining contentionsraised in his main and pro se supplemental briefs. Present—Scudder, P.J., Smith,Fahey and Martoche, JJ.