| People v Watson |
| 2014 NY Slip Op 01473 [115 AD3d 687] |
| March 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Dwayne Watson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, and Rona I. Kugler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered April 2, 2012, convicting him of criminal possession of a weaponin the second degree, unlawful possession of marijuana, and resisting arrest, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after ahearing (Paynter, J.), of that branch of the defendant's omnibus motion which was tosuppress physical evidence.
Ordered that the judgment is affirmed.
Near midnight on June 30, 2009, Bobby Thomas almost struck a police car when hedrove his vehicle, without its headlights illuminated, through a stop sign and into anintersection. The police attempted to pull Thomas over, but he refused to stop. Inattempting to evade the police, Thomas drove through several stop signs and a red trafficsignal before crashing his vehicle into a fence. Thomas got out of his car and continuedto flee, on foot, with the police in pursuit. When Thomas ran into the basement apartmentof a house, the police knocked on the door and demanded entry. The codefendant, MarkBrown, who was inside the apartment, unlocked the door, and the police entered. Theysaw marijuana on a coffee table in the living room and more marijuana in the kitchen.Hearing sounds from the bathroom, the police tried to open the door, but the defendant,who was inside, tried to hold the door shut. The police forced the door open and subduedhim. In an open hamper, the police found a loaded Glock pistol. Eventually, the policefound Thomas hiding under a bed in one of the bedrooms. They also found another pistolin that bedroom. The defendant, who resided in the apartment, was charged with, amongother crimes, criminal possession of a weapon in the second degree under Penal Law§ 265.03 (1) (b) (intent to use unlawfully) with respect to the Glock pistol. He wastried jointly with Mark Brown and was convicted of criminal possession of a weapon inthe second degree, unlawful possession of marijuana, and resisting arrest. The defendantraises numerous claims on this appeal.
First, the defendant contends that the Glock pistol and the marijuana should havebeen suppressed because the police entered his home without a warrant. Although, as ageneral rule, a warrantless police entry into a suspect's home to make an arrest is"presumptively unreasonable" (Payton v New York, 445 US 573, 586 [1980]; see People v McBride, 14NY3d 440, 445 [2010], cert denied [*2]562US —, 131 S Ct 327 [2010]; People v Levan, 62 NY2d 139, 144 [1984];People v Gonzales, 111AD3d 147, 149-150 [2013]), exigent circumstances or a true "hot pursuit" mayjustify a warrantless entry (see United States v Santana, 427 US 38, 43 [1976];People v White, 291 AD2d 250, 250 [2002]). Here, the police justifiably enteredthe defendant's home in "hot pursuit" of Thomas (see People v Brantley, 189AD2d 886 [1993]), and they were still looking for Thomas when they saw the marijuanain the living room and kitchen and when they forced their way into the bathroom,encountered the defendant, and saw the gun in the open hamper. Accordingly, the policelawfully seized the gun and the marijuana, and that branch of the defendant's omnibusmotion which was to suppress the gun and the marijuana was properly denied (seePeople v Miles, 210 AD2d 353, 353-354 [1994]; People v Brantley, 189AD2d at 888).
Inasmuch as the defendant did not direct his motion for a trial order of dismissal tothe charge of criminal possession of a weapon in the second degree, his claim that theevidence was legally insufficient to prove his guilt of that crime is not preserved as aquestion of law for appellate review (see CPL 470.05 [2]; People v Thornhill, 105 AD3d978, 978 [2013]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find thatthe evidence, coupled with the applicable statutory presumption (see Penal Law§ 265.15 [4]), was legally sufficient with respect to that count. The defendant'scontentions that the evidence was not legally sufficient to prove his guilt of unlawfulpossession of marijuana or resisting arrest are likewise without merit (see People vContes, 60 NY2d at 621; Penal Law § 220.25 [2]). In fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to thefact-finder's opportunity to view the witnesses, hear the testimony, and observe demeanor(see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord here, we are satisfied that the verdict of guilt as to all of the crimes was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant contends that the count charging him with criminal possession of aweapon in the second degree was duplicitous because the indictment did not specifywhich of the two weapons found in the apartment was the subject of the count. Thedefendant never raised this claim of duplicitousness in the Supreme Court, so it is notpreserved for appellate review (see People v King, 85 AD3d 820, 821 [2011]). The claimis, in any event, meritless. The count charging the defendant with criminal possession ofa weapon in the second degree charged the possession of one weapon (see People vLora, 176 AD2d 273 [1991]). Further, there was no danger of a nonunanimousverdict with respect to which gun the defendant possessed. At trial, the prosecutorspecified in his opening statement and summation which of the two weapons was thesubject of that count. Further, the court specified in its instructions to the jury whichweapon was the subject of the weapon-possession count against the defendant.
Reversal of the defendant's conviction is likewise not warranted by events thatoccurred in the period during jury deliberations while the defendant's attorney was absentfrom the courtroom. While counsel was absent, the jury sent two notes. However, thecodefendant's counsel communicated the contents of the jury's first note to thedefendant's counsel, and the defendant's counsel had an opportunity to help formulate aresponse and to consult with the defendant himself. Under these circumstances, thedefendant's claim of error with respect to the first note is without merit. As to the secondnote, the codefendant's counsel acted as the defendant's attorney (see People v Pena, 81 AD3d412, 412 [2011]; People v Hunt, 227 AD2d 568, 569 [1996]) in formulatinga response. Moreover, the brief period of joint representation by the codefendant'scounsel of both the codefendant and the defendant did not deprive the defendant of theeffective assistance of counsel. The joint representation presented only a potentialconflict of interest, and it is the defendant's "heavy burden" (People v Jordan, 83NY2d 785, 787 [1994]) to show that a potential conflict actually operated on the defense(see People v Sanchez, 21NY3d 216, 223 [2013]). Here, the record demonstrates that the defenses presentedby the codefendant and the defendant were not inconsistent, and the brief period of jointrepresentation resulted only in the court giving the same instruction on constructivepossession that it had given already when the defendant's counsel was present. Thus, thedefendant has not met his "heavy burden" of establishing that the potential conflictoperated on the conduct of his defense (People v Jordan, 83 NY2d 785, 787[1994]; see People v Pena, 81 AD3d at 412-413).[*3]
The defendant's remaining contentions areunpreserved for appellate review and, in any event, without merit. Mastro, J.P., Skelos,Balkin and Roman, JJ., concur.