| People v Griggs |
| 2013 NY Slip Op 05126 [108 AD3d 1062] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v PerryGriggs, Appellant. |
—[*1] Perry Griggs, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered June 9, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon 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 ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]),defendant contends that Supreme Court erred in denying his motion to dismiss theindictment based upon alleged prosecutorial misconduct before the grand jury.According to defendant, the prosecutor improperly questioned him about his priorcriminal convictions and failed to instruct the grand jurors properly with respect to thedefense of temporary innocent possession. We reject defendant's contention. Withrespect to the alleged prosecutorial misconduct, we note that the prosecutor was entitledto cross-examine defendant on issues concerning his credibility (see People vThomas, 213 AD2d 73, 76 [1995], affd 88 NY2d 821 [1996]) and, becausedefendant's criminal record "clearly demonstrated his willingness to place his owninterests above those of society, [it] was thus a proper subject for cross-examination"(People v Burton, 191 AD2d 451, 451 [1993], lv denied 81 NY2d 1011[1993]). With respect to the instruction on the defense of temporary innocent possession,we note that it is almost identical to the instruction set forth in the Pattern JuryInstructions (see CJI2d[NY] Temporary and Lawful Possession). Defendantraises several other contentions regarding the conduct of the prosecutor during the grandjury proceedings, but they are similarly without merit.
We reject defendant's further contention that the court erred in permitting defendant'sex-girlfriend to testify that she observed him in possession of the firearm in question onthe night before his arrest. That testimony was relevant to defendant's defense oftemporary innocent possession of the weapon. We agree with defendant, however, thatthe court erred in permitting his ex-girlfriend to testify concerning prior drug sales andacts of domestic violence. That testimony was not relevant to a material issue at trial and,furthermore, its probative value was [*2]outweighed byits prejudicial effect (seegenerally People v Cass, 18 NY3d 553, 559 [2012]). Nevertheless, we concludethat the error is harmless (seePeople v Bounds, 100 AD3d 1523, 1524 [2012], lv denied 20 NY3d1096 [2013]; People vTaylor, 97 AD3d 1139, 1141 [2012], lv denied 19 NY3d 1029 [2012];see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Defendant, byhis own admission, possessed the loaded firearm, and the only disputed issue at trial waswhether the defense of temporary and innocent possession applied. Even assuming,arguendo, that the jurors accepted defendant's seemingly implausible claim that hewrestled the gun away from a man who was trying to rob him, we conclude that thedefense of temporary innocent possession does not apply because defendant " 'made noeffort to turn the [gun] over to the police' " after he obtained possession of it (People v Ward, 104 AD3d1323, 1325 [2013]; seePeople v McCoy, 46 AD3d 1348, 1349-1350 [2007], lv denied 10NY3d 813 [2008]). Instead, defendant hid the gun under a fence in a vacant lot and thenremained silent while the police were searching the vacant lot, conduct that was "utterlyat odds with any claim of innocent possession" (McCoy, 46 AD3d at 1350[internal quotation marks omitted]).
Viewing the evidence in light of the elements of criminal possession of a weapon inthe second degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we alsoreject defendant's contention that the verdict is against the weight of the evidence (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]; People v Rumph, 93 AD3d1346, 1347 [2012], lv denied 19 NY3d 967 [2012]). Indeed, our"independent review of the evidence reveals that a different verdict would have beenunreasonable" (People vJohnson, 24 AD3d 803, 804 [2005]; see People v Peters, 90 AD3d 1507, 1508 [2011], lvdenied 18 NY3d 996 [2012]; see generally Bleakley, 69 NY2d at 495).
We have reviewed the remaining contentions set forth in defendant's main and pro sesupplemental briefs and conclude that none warrants modification or reversal.Present—Scudder, P.J., Peradotto, Lindley, Sconiers and Whalen, JJ.