| People v Gelmi |
| 2014 NY Slip Op 00376 [113 AD3d 790] |
| January 22, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marcel Gelmi, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of Supreme Court, Queens County(Latella, J.), rendered June 13, 2011, convicting him of criminal possession of a weaponin the second degree (two counts), criminal possession of a weapon in the third degree,criminal trespass in the third degree, and trespass, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
After a trial, a jury found that the defendant, while acting with the codefendant,committed the crimes of criminal possession of a weapon in second degree under countsthree and four of the indictment, criminal possession of a weapon in the third degree,criminal trespass in the third degree, and trespass.
The evidence adduced at trial showed that, in the early morning hours of November1, 2009, the defendant possessed a firearm while at the home of a witness. The witnesstestified that the defendant and the codefendant were in her home searching for anotherindividual, nicknamed "Black Pat." Black Pat, who was the godfather of the witness'sgrandson, frequently visited the witness's home. The witness testified that, at that time ofthe alleged search, the codefendant's face was beaten and bloody. The witness observedthat a bullet "fell" or "flew" out of the gun that the defendant was holding, and that thedefendant picked up the bullet. After the witness told the defendant and the codefendantto leave her home, they exited her home and walked out to her driveway.
Two additional witnesses, who resided next door to the witness described above,observed two men in the driveway of that witness's home. One of the two additionalwitnesses observed that the larger of the two men was holding what appeared to be afirearm; testimony adduced at trial showed that the defendant was slightly taller andsignificantly heavier than the codefendant. The two additional witnesses called the policeand, shortly thereafter, the police arrived at the scene and encountered the defendant andthe codefendant. The police canvassed the area. Inside of a garbage can, the officersdiscovered a firearm on top of a trash bag and an ammunition clip lower down inside ofthe garbage can. The garbage can was situated two to six feet away from [*2]the defendant and the codefendant. The firearm and theammunition clip were subsequently determined to be operable.
The defendant preserved for appellate review his contention that the evidence waslegally insufficient to establish the element of possession with respect to the convictionsof two counts of criminal possession of a weapon in the second degree (see PenalLaw § 265.03 [1] [b]; [3]), and criminal possession of a weapon in the third degree(see Penal Law § 265.02 [1]). The defendant failed, however, to preservehis contention that the evidence did not establish that the firearm was "loaded," anelement of criminal possession of a weapon in the second degree that was charged underthe third count of the indictment (Penal Law § 265.03 [3]). Nevertheless, we reachthis contention in the exercise of our interest of justice jurisdiction (see CPL470.15 [6] [a]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish,beyond a reasonable doubt, the defendant's guilt of criminal possession of a weapon inthe second degree under count three of the indictment. Likewise, there was legallysufficient evidence that the defendant was guilty of the crime of criminal possession of aweapon in the second degree, as charged in count four of the indictment (seePenal Law § 265.03 [3]), and criminal possession of a weapon in third degree(see Penal Law § 265.02 [1]). Moreover, in fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9NY3d 342, 348 [2007]), we accord great deference to the jury's opportunity to viewthe witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we find that the verdict of guiltwith respect to the above crimes was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
In support of his contention that the People failed to prove that he possessed afirearm while inside of the home of the first witness, the defendant points to the fact thatthe witness provided inconsistent testimony. During her direct examination, the witnesstestified that she did not want to testify and that she only appeared in court because of asubpoena. She added that she had received threats related to the trial. Oncross-examination, this witness testified that it was "possible" that the defendant did notpossess a firearm while in her home. She further testified that she knew the defendant,but not the codefendant, and that it was possible that she stated that the defendant had thegun because the defendant was the only person she recognized. On redirect examination,however, this witness reiterated that she observed the defendant with a gun. In addition,she testified that the defendant could have been the individual who stated that he waslooking for Black Pat because he "wanted to kill him." The defendant relies upon the rulethat "[w]hen all of the evidence of guilt comes from a single prosecution witness whogives irreconcilable testimony pointing both to guilt and innocence, the jury is leftwithout basis, other than impermissible speculation, for its determination of either"(People v Jackson, 65 NY2d 265, 272 [1985]; see People v Calabria, 3 NY3d80, 82 [2004]; People v Fratello, 92 NY2d 565, 572 [1998], cert denied526 US 1068 [1999]; People v Foster, 64 NY2d 1144, 1147 [1985], certdenied 474 US 857 [1985]). However, a corollary of this rule applies "when the jury,acting within its rightful province of determining credibility, weighing evidence anddrawing justifiable inferences from proven facts, has an objective, rational basis forresolving beyond a reasonable doubt the contradictory inculpating and exculpatingversions of the events given by the witness" (People v Fratello, 92 NY2d at573-574). Under those circumstances, the jury's determination of guilt "is no longerbased on impermissible speculation and should be upheld" (id. at 574 [internalquotation marks omitted]).
Upon our review of the record, we conclude that the jury's resolution of theinconsistencies in the first witness's testimony had an objective, rational basis, and wefind no reason to disturb the jury's factual findings in this regard. Any inconsistencies inthe first witness's testimony did not render her testimony incredible or otherwiseunworthy of belief.
The sentence imposed was not excessive (see People v Delgado, 80 NY2d780, 783 [1992]; People v Thompson, 60 NY2d 513, 519 [1983]; People vSuitte, 90 AD2d 80, 85-86 [1982]). Rivera, J.P., Leventhal, Hall and Roman, JJ.,concur.