| People v Dale |
| 2014 NY Slip Op 01477 [115 AD3d 1002] |
| March 6, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Jose Dale, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedNovember 17, 2010 in Albany County, (1) upon a verdict convicting defendant of thecrime of criminal possession of a weapon in the second degree and (2) convictingdefendant upon his plea of guilty of the crime of criminal use of a firearm in the firstdegree.
On the evening of July 15, 2009, defendant was standing with a group of people nextto his sister's BMW station wagon outside of 326 First Street in the City of Albany.Defendant allegedly used a .380 caliber handgun to fire a shot into the driver's sidewindow of the locked vehicle in an attempt to retrieve his sister's keys from inside. SeanSlingerland, a plain-clothes police officer who had been driving down First Street in anunmarked police car, heard the shot and observed defendant holding the gun. Slingerlandstopped his car in front of the BMW and radioed to other officers that shots had beenfired. While the details of what occurred next are in dispute, it is clear that Slingerlandexited his vehicle and drew his weapon and that shots were fired. By Slingerland'saccount, defendant fired a shot at him, causing him to return fire. Defendant then fled thescene and discarded his gun. He was ultimately apprehended and his weapon wasrecovered.
Defendant was subsequently charged in a five-count indictment with attemptedmurder in the second degree, criminal use of a firearm in the first degree, criminalpossession of a [*2]weapon in the second degree (twocounts) and criminal possession of a weapon in the third degree. Before trial, SupremeCourt dismissed the charge of criminal possession of a weapon in the third degree. At theconclusion of trial, the jury was hung as to the charges of attempted murder in the seconddegree and criminal use of a firearm in the first degree, but found defendant guilty of onecount of criminal possession of a weapon in the second degree and not guilty of the othercount.[FN1]
The People elected to retry defendant on the charges of attempted murder andcriminal use of a firearm. However, before the retrial commenced, defendant entered anAlford plea to the charge of criminal use of a firearm in the first degree insatisfaction of the remaining two charges against him and waived his right to appeal.Defendant was thereafter sentenced as a second violent felony offender to concurrentprison terms of 15 years for the conviction of criminal possession of a weapon in thesecond degree and 18 years for the conviction of criminal use of a firearm in the firstdegree, plus five years of postrelease supervision on each conviction. Defendant nowappeals, and we affirm.
As an initial matter, Supreme Court properly denied defendant's motion to suppressthe oral statements he gave to police upon his arrest. Defendant asserts that he wasintoxicated when he made such statements and that he did not voluntarily waive hisMiranda rights. "Whether a statement is voluntary is a factual question to bedetermined from the totality of the circumstances" (People v Heesh, 94 AD3d 1159, 1160 [2012], lvdenied 19 NY3d 961 [2012] [citations omitted]; see People v Kidd, 112 AD3d 994, 996 [2013]). Adefendant's intoxication at the time that he or she makes a statement while in policecustody is one factor to be considered in determining voluntariness (see People vSchompert, 19 NY2d 300, 305 [1967], cert denied 389 US 874 [1967]; People v Baugh, 101 AD3d1359, 1360 [2012], lv denied 21 NY3d 911 [2013]). Standing alone, adefendant's intoxication will only render a confession involuntary when " 'the degree ofinebriation has risen to the level of mania or to the level where the defendant is unable tocomprehend the meaning of his or her words' " (People v Scott, 47 AD3d 1016, 1020 [2008], lvdenied 10 NY3d 870 [2008], quoting People v Williams, 40 AD3d 1364, 1365 [2007], lvdenied 9 NY3d 927 [2007]; see People v Carelli, 41 AD3d 1092, 1093 [2007]).
Here, after defendant was arrested, he was brought to the police station and placed inan interrogation room. Michael Bennett, the first officer to question defendant there,testified at the Huntley hearing that he learned from defendant's sister, Erin Dale,that defendant had been drinking and acting recklessly before he came into policecustody.[FN2]However, when Bennett entered defendant's interrogation room, he found defendantsleeping and did not smell alcohol on him. After defendant awoke, he began reciting hisMiranda rights, but Bennett interrupted defendant, personally read defendant hisMiranda rights and asked defendant if he understood those rights. Defendantresponded that he did and questioning ensued. Defendant then made multipleincriminating statements regarding the incident, but refused to provide a written [*3]statement. While defendant had been drinking, the totalityof Bennett's testimony—which Supreme Court found to have "the general forceand flavor of credibility"—belies the assertion that he was so "inebriated as to beincapable of understanding what he was saying" (People v Dobranski, 112 AD2d541, 542 [1985], lv denied 66 NY2d 614 [1985]; see People vSchompert, 19 NY2d at 305; People v Kenyon, 108 AD3d 933, 936 [2013], lvdenied 21 NY3d 1075 [2013]; People v Baugh, 101 AD3d 1359, 1361 [2012], lvdenied 21 NY3d 911 [2013]).
Nor is there any other factor evidenced by the record that would lead us to concludethat defendant's statements were not voluntary. Although defendant was arrested at 10:30p.m., the interrogation did not begin until 3:30 a.m. and lasted only 1½ hours.While he was in custody, defendant was offered food and water, was able to sleep andnever asked to speak with an attorney (see People v Heesh, 94 AD3d at1160-1161). Under these circumstances, and according great deference to SupremeCourt's credibility determinations (see People v Kidd, 112 AD3d at 996), we findthat the record supports the conclusion that defendant's statements were voluntarily made(see People v Baugh, 101 AD3d at 1361; People v Heesh, 94 AD3d at1161; People v Munck, 92AD3d 63, 68-69 [2011]; People v Pendelton, 90 AD3d 1234, 1236 [2011], lvdenied 18 NY3d 996 [2012]).
We also reject defendant's contention that the verdict was against the weight of theevidence. To convict defendant of criminal possession of a weapon in the second degree,the People were required to prove beyond a reasonable doubt that he possessed a loadedfirearm at a location other than his home or place of business "with intent to use the sameunlawfully against another" (Penal Law § 265.03 [1]; see Penal Law§ 265.03 [1] [b]; [3]; People v Hawkins, 110 AD3d 1242, 1242 [2013], lvdenied 22 NY3d 1041 [2013]). The intent to use a weapon unlawfully may beinferred from a defendant's actions and the surrounding circumstances (see People v Brown, 100AD3d 1035, 1036-1037 [2012], lv denied 20 NY3d 1009 [2013]; People v Molina, 79 AD3d1371, 1376 [2010], lv denied 16 NY3d 861 [2011]). Further, as relevanthere, justification acts as an affirmative defense to criminal possession of a weapon in thesecond degree, allowing a defendant, who was not the initial aggressor, to defend himselfor herself with deadly force provided that safe retreat is not possible (see PenalLaw § 35.15 [1], [2] [a] [i]; People v Byrd, 79 AD3d 1256, 1258 [2010]). Defendantargues here that the People failed to prove beyond a reasonable doubt that he intended touse the gun unlawfully because he did not fire at Slingerland. Defendant further assertsthat, even if he had fired at Slingerland, he would have been justified in doing so becauseSlingerland did not identify himself as a police officer when he exited his vehicle anddefendant thought he was in danger when Slingerland raised his weapon. We are notpersuaded.
To establish the requisite intent, the People proffered, among other things, thetestimony of several police officers—including Slingerland and others whoresponded to the scene and investigated the incident—to prove that defendantraised his weapon and fired at Slingerland. Slingerland testified that he heard a gun shotand saw defendant standing next to the car with a gun in his hand. He then pulled his carover, got out of his vehicle, drew his weapon and said something to defendant.[FN3]Slingerland observed defendant raise his gun and then saw a muzzle [*4]flash when defendant fired. Slingerland also testified thathe and defendant were acquainted with one another, that defendant called him by his firstname and that he was wearing his badge in a visible location on the night of the incident.Certain eyewitnesses confirmed Slingerland's account that defendant fired at him, whileothers claimed that only Slingerland fired his weapon. One witness testified that he hadseen defendant with a loaded gun the day before the incident, yet the evidence showedthat it was empty when it was recovered after defendant fled the scene and dropped it.Additionally, a police detective test fired the pistol that was recovered from defendantand concluded that it was operable when it was in his possession. The police also foundtwo .380 caliber shell casings in the area of Dale's vehicle, and a forensic firearminvestigator testified that it was his opinion that these two rounds had been fired fromdefendant's weapon. Moreover, a forensic officer with training in ballistic reconstructionexamined Slingerland's vehicle and found a hole in the windshield that he believed tohave traveled from defendant's direction.
With regard to defendant's statements to the police, Bennett testified at trial that hetold defendant that Slingerland had explained what had happened from his perspective,and defendant responded that whatever Slingerland said was probably what happened.Defendant did not recall how the window of his sister's BMW was shattered, but didrecall that the man who exited the other vehicle—presumablySlingerland—yelled "Jose Dale, freeze." Defendant praised Slingerland's decisionnot to shoot all of his bullets at defendant, even though that is what defendant wouldhave done. Defendant also told Bennett about an incident that occurred several daysearlier when an officer approached defendant as he stood next to a dice game on thestreet; defendant said that he had a gun on him and if the officer "had told him to get tothe wall that he would have done whatever he had to do to get out of [that situation]."Despite some contradictory evidence regarding the subject events, the jury's verdictreflects that it rejected defendant's justification defense and his claim that he did not firehis weapon at Slingerland. While a different verdict would not have been unreasonable,when we view the trial evidence in a neutral light, along with the rational inferences tobe drawn therefrom, and defer to the credibility determinations made by the jury, we findthe verdict to be in accord with the weight of the evidence (see People v Romero, 7 NY3d633, 643-644 [2006]; People v Mercado, 113 AD3d 930, 932-933 [2014]; People v Burden, 108 AD3d859, 860 [2013]).
Defendant also argues that the verdict was repugnant. However, defendant declinedSupreme Court's specific invitation at trial to challenge the verdict on thisbasis.[FN4]Because defendant did not make his repugnancy claim before the jury was discharged,when Supreme Court would have had the opportunity to address it (see People v Henehan, 111AD3d 1151, 1152 [2013]; People v Smith, 89 AD3d 1126, 1131 [2011], lvdenied 18 NY3d 962 [2012]; People v Coville, 73 AD3d 1232, 1232 [2010]), he failedto preserve such claim for our review (see People v Hawkins, 110 AD3d at 1244;People v McCottery, 90AD3d 1323, 1326 [2011], lv denied 19 NY3d 975 [2012]; compare People v Watson, 20NY3d 182, 188 [2012]), and we discern no basis to exercise our interest of justicejurisdiction (see People v Rolfe, 83 AD3d [*5]1217, 1218 [2011], lv denied 17 NY3d 809 [2011];People v Pearson, 69 AD3d1226, 1227 [2010], lv denied 15 NY3d 755 [2010]).
Similarly unpreserved is defendant's claim that his Alford plea to criminaluse of a firearm in the first degree was not knowingly, voluntarily and intelligently made,as the record does not reflect that defendant made an appropriate postallocution motionon that basis, and the narrow exception to the preservation rule is not applicable (see People v Fallen, 106 AD3d1118, 1119 [2013]; Peoplev Bates, 83 AD3d 1110, 1112 [2011], lv denied 21 NY3d 1072 [2013]).Were this issue properly before us, we would find it to be lacking in merit because theplea allocution sets forth "strong record evidence of actual guilt" and Supreme Court'sextensive questioning "demonstrated that defendant's plea was knowingly and voluntarilymade" (People v Bates, 83 AD3d at 1113 [internal quotation marks and citationomitted]; see People v Ture,94 AD3d 1163, 1164 [2012], lv denied 19 NY3d 968 [2012]).
Defendant's argument that his sentence with respect to the conviction of criminal useof a firearm in the first degree was harsh and excessive is also unavailing, inasmuch as heis precluded by his valid appeal waiver from making such challenge (see People v Orminski, 108AD3d 864, 866 [2013], lv denied 22 NY3d 958 [2013]; People vFallen, 106 AD3d at 1119). As to his sentence on the conviction of criminalpossession of a weapon in the second degree, considering the nature of the crime anddefendant's extensive criminal history, we perceive neither an abuse of discretion nor thepresence of extraordinary circumstances that would warrant modification of the sentenceimposed (see People v Mercado, 113 AD3d at 934; People v Hasenflue, 110 AD3d1108, 1109 [2013]; Peoplev Thomas, 105 AD3d 1068, 1072 [2013], lv denied 21 NY3d 1010[2013]). To the extent not specifically addressed herein, defendant's remainingcontentions have been considered and found to be lacking in merit.
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Defendant wasconvicted of the charge accusing him of shooting at Slingerland and was acquitted of thecharge relating to the shot allegedly fired into the BMW.
Footnote 2: Indeed, while Bennettwas questioning Dale, he could hear defendant "ranting and raving" down the hall, anddeduced that defendant was under the influence of alcohol.
Footnote 3: Although Slingerlandtestified at trial that he could not remember exactly what he said to defendant, duringcross-examination Slingerland recounted his grand jury testimony. In that testimony,Slingerland claimed to have yelled out to defendant by name, told him to "freeze," andstarted to tell him to get down.
Footnote 4: Despite asking theparties if they wished to raise the issue, Supreme Court noted that it did not consider theverdict to be repugnant.