| People v Hawkins |
| 2014 NY Slip Op 00045 [113 AD3d 1123] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Lawrence Hawkins, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered February 9, 2012. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]) and criminal possession of a weapon in the third degree (§ 265.02 [1]).Contrary to defendant's contention, we conclude that the evidence, viewed in the lightmost favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), islegally sufficient to disprove his defense of temporary and lawful possession of theweapon (see People vBailey, 111 AD3d 1310, 1311 [2013]; People v Lucas, 94 AD3d 1441, 1441 [2012], lvdenied 19 NY3d 964 [2012]). After disarming his son, who was drunk and wieldinga revolver at a family gathering, defendant locked the weapon in a garage. Defendant'sown testimony, however, established that he soon thereafter retrieved the weapon duringthe course of a volatile argument with his son, shot his son, and then fled from the sceneand destroyed the weapon rather than wait and turn it over to the authorities. "Suchconduct is 'utterly at odds with [defendant's] claim of innocent possession. . . temporarily and incidentally [resulting] from . . .disarming a wrongful possessor' " (Bailey, 111 AD3d at 1311; see People vBanks, 76 NY2d 799, 801 [1990]; People v Gonzalez, 262 AD2d 1061,1062 [1999], lv denied 93 NY2d 1018 [1999]). Although defendant maintainedthat he shot his son in self-defense, we note that "[i]t is well settled that justification isnot a defense to a weapon possession count" (People v Hancock, 43 AD3d 1380, 1380 [2007], lvdenied 9 NY3d 1034 [2008]). Furthermore, viewing the evidence in light of theelements of 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 People v Hicks, 110 AD3d1488, 1488-1489 [2013]; Gonzalez, 262 AD2d at 1061-1062; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
We reject defendant's further contention that he was denied effective assistance ofcounsel based on defense counsel's failure to object to testimony that defendant shot hisson in the back (see generallyPeople v Santiago, 101 AD3d 1715, 1716-1717 [2012], lv denied 21NY3d 946 [2013]). [*2]We conclude that the record,viewed as a whole, demonstrates that defense counsel provided meaningfulrepresentation (see People vMartinez, 73 AD3d 1432, 1433 [2010], lv denied 15 NY3d 807 [2010];see generally People v Baldi, 54 NY2d 137, 147 [1981]).
Defendant further contends that he was denied his right to be present at all materialstages of the trial because the record does not establish that he was present for threesidebar conferences during voir dire. We reject that contention. " '[A] sidebar interviewthat concerns a juror's background, bias or hostility, or ability to weigh the evidenceobjectively is a material stage of trial at which a defendant has a right to be present. . . , and a waiver by defendant [of that right] will not be inferred from asilent record' " (People v Cohen, 302 AD2d 904, 905 [2003]; see CPL260.20; People v Antommarchi, 80 NY2d 247, 250 [1992], rearg denied81 NY2d 759 [1992]). "There is[, however,] a presumption of regularity thatattaches to judicial proceedings, and that presumption may be overcome only bysubstantial evidence to the contrary" (People v Chacon, 11 AD3d 906, 907 [2004], lv denied3 NY3d 755 [2004]; seePeople v Foster, 1 NY3d 44, 48 [2003]). Here, County Court explained to theprospective jurors that the parties would be present in the jury room for any sidebarconferences during voir dire, and the record establishes that defendant was present at thebeginning of jury selection, during the first and third sidebar conferences, and at the endof jury selection. We conclude with respect to the second sidebar conference thatdefendant failed to overcome the presumption of regularity with substantial evidence ofhis absence.
Finally, we agree with the People that defendant failed to provide a sufficient recordto enable us to review the adequacy of the grand jury instructions (see People vKinchen, 60 NY2d 772, 773-774 [1983]; People v Dixon, 37 AD3d 1124, 1124 [2007], lv denied10 NY3d 764 [2008]), and that defendant's challenge to the sufficiency of theevidence before the grand jury is foreclosed by his conviction based upon legallysufficient evidence (see Peoplev Edgeston, 90 AD3d 1535, 1535-1536 [2011], lv denied 19 NY3d 973[2012]; see also CPL 210.30 [6]). Present—Scudder, P.J., Centra, Carni,Sconiers and Whalen, JJ.