| People v Kidd |
| 2013 NY Slip Op 08151 [112 AD3d 994] |
| December 5, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJermaine M. Kidd, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Alexander Lesyk of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered January 30, 2012, upon a verdict convicting defendant of thecrime of criminal possession of a weapon in the third degree.
On May 11, 2010, defendant's estranged wife, Kelly Bonnar, reported to the St.Lawrence County Sheriff's Office an incident earlier in the day in which defendantconfronted her with a firearm in the house where they continued to cohabit. The Sheriff'sOffice obtained and executed a search warrant at the residence and placed defendant incustody; Bonnar secured their dogs to allow deputies to enter the residence to conduct asearch for the firearm. While Bonnar was using a bathroom in the residence, the toiletwould not operate and she discovered the firearm in the toilet tank and notified thedeputies. Defendant was subsequently charged by indictment with criminal possession ofa weapon in the third degree and menacing in the second degree. After suppressionhearings, County Court denied defendant's motion to suppress his statements to a deputyduring the execution of the search warrant, and rejected his challenges to the searchwarrant and to the search of the residence, in written decisions. Following a jury trial,defendant was convicted of the weapon possession count. Sentenced as a second felonyoffender to a prison term of 3 to 6 years, defendant appeals.
Initially, defendant challenges County Court's ruling, after a Molineuxhearing, which allowed the People to elicit testimony from Bonnar regarding defendant'spurchase of the gun and [*2]prior incidents of domesticviolence. "Evidence of . . . prior uncharged crime[s] [or prior bad acts] maynot be admitted solely to demonstrate a defendant's bad character or criminal propensity,but may be admissible if linked to a specific material issue or fact relating to the crime[s]charged, and if [their] probative value outweighs [their] prejudicial impact" (People vBlair, 90 NY2d 1003, 1004-1005 [1997] [citation omitted]; see People vAlvino, 71 NY2d 233, 241-242 [1987]). Testimony that defendant had purchased thegun in another state in 2006 and subsequently used or displayed it in this state in 2007and 2008 during three domestic incidents was relevant and probative of a materialelement of a crime charged, namely, defendant's knowing possession of the gun(see Penal Law § 265.02 [3]; People v Echavarria, 53 AD3d 859, 863 [2008], lvdenied 11 NY3d 832 [2008]; People v Wright, 5 AD3d 873, 875-876 [2004], lvdenied 3 NY3d 651 [2004]). Further, defense counsel put that element in issue in hisopening statement and throughout the trial, by pursuing the defense that it was Bonnar,not defendant, who had purchased the gun out of state, and that she had planted it in thetoilet to force defendant's departure from the house that they continued to share. Also,defendant testified at trial that he had arranged for her to purchase the gun and had beenunaware of its whereabouts since 2009 and disclaimed possessing it (see People vEchavarria, 53 AD3d at 863).
We also find no error in County Court permitting Bonnar to offer limited testimonyof prior incidents of domestic violence in which, like the menacing crime charged,defendant displayed, pointed or used the gun. This evidence was relevant to materialissues aside from propensity, including defendant's intent and motive to instill fear inBonnar (see Penal Law § 120.14 [1]), the absence of mistake, and asrelevant but circumscribed background information (see People v Westerling, 48 AD3d 965, 966 [2008]; People v Doyle, 48 AD3d961, 963-964 [2008], lv denied 10 NY3d 862 [2008]; People v Betters, 41 AD3d1040, 1041-1042 [2007]; People v Poquee, 9 AD3d 781, 782 [2004], lvdenied 3 NY3d 741 [2004]; People v Mathias, 7 AD3d 824, 825-826 [2004]). Thecourt excluded numerous other proferred instances of domestic violence and prior badacts after carefully and appropriately weighing the probative value of the testimonyagainst its prejudicial effect (see People v Blair, 90 NY2d at 1004-1005;People v Doyle, 48 AD3d at 964). While a contemporaneous limiting instructionis preferred (see People vBurkett, 101 AD3d 1468, 1471 n 3 [2012], lv denied 20 NY3d 1096[2013]), none was requested, and the court gave such an instruction shortly afterBonnar's testimony and in its final charge.
Next, the suppression testimony amply supports County Court's finding, after aHuntley hearing, that the People proved beyond a reasonable doubt thatdefendant's statements to police were voluntarily made after a valid and knowing waiverof his Miranda rights (see People v Mattis, 108 AD3d 872, 874 [2013], lvdenied 22 NY3d 957 [Oct. 7, 2013]; People v Culver, 69 AD3d 976, 976-977 [2010])."Determining whether a statement is voluntary is a factual issue governed by the totalityof the circumstances [and] [t]he credibility assessments of the suppression court. . . are entitled to [great] deference" (People v Mattis, 108 AD3d at874 [internal quotation marks and citation omitted]; see People v Culver, 69AD3d at 977). Sheriff's Deputy Shawn Wells testified that prior to the search of theresidence, defendant was handcuffed and placed in the police vehicle. When Wells readthe Miranda warnings the first time, defendant did not respond when asked if heunderstood, prompting Wells to read them a second time, to which defendant responded"yes" when asked if he understood. After the gun was located, Wells asked defendantwhy he needed the firearm, and defendant replied that he needed it for "protection" andmade certain admissions. We discern no basis upon which to disturb the court'svoluntariness finding in that regard.[*3]
To the extent that defendant claims that heunequivocally asserted his right to remain silent each time he was read his rights, CountyCourt expressly credited Well's testimony that he never did so, and expressly discrediteddefendant's testimony that he did. Deferring to the court's factual and credibilitydeterminations, we find no error in its determination that defendant did not unequivocallyinvoke his right to remain silent, which right was not violated, and in its denial of hismotion to suppress his statement (see People v Ferro, 63 NY2d 316, 322 [1984],cert denied 472 US 1007 [1985]; People v Horton, 46 AD3d 1225, 1226-1227 [2007], lvdenied 10 NY3d 766 [2008]; People v Caruso, 34 AD3d 860, 862 [2006], lvdenied 8 NY3d 879 [2007]; cf. People v Johnson, 106 AD3d 1272, 1274-1277 [2013],lv denied 21 NY3d 1043 [2013]).
Finally, defendant's contention that the gun should have been suppressed on theground that Bonnar's discovery of it tainted the search is unpreserved, as it was not raisedat the suppression hearing or at trial (see CPL 470.05 [2]). We decline to takecorrective action in the interest of justice, given that the suppression testimonyestablished that Bonnar did not "participate" in the execution of the search warrant but,rather, inadvertently came upon the gun in the residence during the deputies' execution ofthe search warrant; the deputies in all likelihood would have discovered the gun and,moreover, Bonnar resided in the home and had every right to tell the deputies where itwas located. Further, the scope of the search warrant was not exceeded as a result of herdiscovery, which did not render the search improper (see People v Charlier, 136AD2d 862, 864-865 [1988]). Defendant had a full opportunity to argue to the jury at trialthat Bonnar owned the gun and planted it in order to rid herself of his presence.
Lahtinen, J.P., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.