| People v Alls |
| 2014 NY Slip Op 03302 [117 AD3d 1190] |
| May 8, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDarion Alls, Appellant. |
Theodore J. Stein, Woodstock, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Matthew R. Grimes of counsel),for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered June 5, 2012, upon a verdict convicting defendant of the crimesof criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
Based on telephone calls he received from a confidential informant (hereinafter CI),a detective and several members of his task force staked out a building on Henry Street inthe City of Kingston, Ulster County. Shortly after noon, the detective observed defendantenter the building, followed a short time later by the CI. The CI exited the buildingmoments later and walked away. Defendant left the building about 15 minutes later andwalked about a block to O'Neil Street, where he went around behind a building and wasattempting to climb the fire escape when police officers approached him. Defendant puthis hands up, as instructed. The detective then grasped defendant's hands, at which timedefendant said, "It's in my front pocket, I carry it for protection." A pat down revealed a.357 Magnum handgun, loaded with three hollow-point bullets, in the front pocket ofdefendant's hooded sweatshirt.
Defendant was charged by indictment with criminal possession of a weapon in thesecond degree and criminal possession of a weapon in the third degree. At trial,defendant raised the defense of temporary and lawful possession of the weapon,testifying that the gun was left behind by the CI, defendant took possession of it only forthe purpose of returning it to him and, if unable to return it, he would have turned it in toa gun buy-back program. County Court duly [*2]instructed the jury on the defense of temporary lawfulpossession, explaining that the People were required to prove beyond a reasonable doubtthat defendant's possession was not innocent. Nonetheless, defendant was convicted ascharged and sentenced to concurrent prison terms of 10 years plus five years ofpostrelease supervision, and seven years plus five years of postrelease supervision,respectively.
On this appeal, defendant contends that the verdict is not supported by legallysufficient evidence because the People failed to meet their burden of proving that hispossession of the gun was not innocent. We disagree. While there are somecircumstances wherein "a person may possess an unlicensed or proscribed weapon andstill not be guilty of a crime because of the innocent nature of the possession" (Peoplev Almodovar, 62 NY2d 126, 130 [1984]; see People v Williams, 50 NY2d1043, 1045 [1980]; People vCurry, 85 AD3d 1209, 1211 [2011], lv denied 17 NY3d 815 [2011]),here, the detective's testimony that defendant stated, "It's in my front pocket, I carry it forprotection," tends to establish that the weapon belonged to defendant and that hepossessed it for longer than the several minutes he claimed. Additionally, defendanthimself testified that he did not attempt to contact the police or turn the gun over toauthorities, notwithstanding that he carried the gun past several open businesses fromwhich he could have made a telephone call. This evidence is sufficient to refutedefendant's claim of innocent possession and to satisfy the People's burden of disprovingthe defense of temporary lawful possession beyond a reasonable doubt (see People v Dawson, 110AD3d 1350, 1353 [2013]; People v Curry, 85 AD3d at 1211).[FN*]
Defendant's claim that he was deprived of the effective assistance of counsel iswithout merit. Evaluating such a claim requires consideration of whether "the evidence,the law, and the circumstances of a particular case, viewed in totality and as of the timeof the representation, reveal that the attorney provided meaningful representation"(People v Baldi, 54 NY2d 137, 147 [1981]; see People v Benevento, 91NY2d 708, 712-713 [1998]; People v Carnevale, 101 AD3d 1375, 1378 [2012]). Here,the record reveals that counsel mounted a vigorous defense, making cogent opening andclosing statements, ably cross-examining the People's key witnesses, and presenting acolorable—albeit ultimately unsuccessful—theory of temporary and lawfulpossession. Regarding defendant's specific complaints, counsel's decision to seek amissing witness charge rather than call the CI as a witness was a matter of trial strategy(see People v Gonzalez, 68 NY2d 424, 427-430 [1986]). As to counsel's decisionnot to seek suppression of the weapon, we note that at the time when pretrial motionswere made, defense counsel could have reasonably expected the CI to testify at thesuppression hearing, as he did before the grand jury, which would have presumablydemonstrated the basis for stopping defendant. Furthermore, given that counsel's theoryof the case focused on defendant's innocent possession of the weapon rather than ondenying possession entirely, defendant has failed to " 'demonstrate the absence ofstrategic or other legitimate explanations' " for counsel's course of action (People v Caban, 5 NY3d143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 709 [1988]; see People v Hammond, 107AD3d 1156, 1156 [2013]; People v Jackson, 67 AD3d 1067, 1068-1069 [2009], lvdenied 14 NY3d 801 [2010]). Finally, defendant's own testimony established that,although he [*3]denied saying that he carried the weaponfor protection, he volunteered his statement and it was not procured through policequestioning. In short, defendant received meaningful representation (see People vHammond, 107 AD3d at 1156; People v Bjork, 105 AD3d 1258, 1263 [2013], lvdenied 21 NY3d 1040 [2013], cert denied 571 US &mdash, 134 S Ct 1306[2014]).
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The trial evidencehaving been found sufficient to support the conviction, defendant's pro se argument thatCounty Court erred in denying his motion to dismiss the indictment based uponinsufficient evidence before the grand jury is not reviewable on appeal (see CPL210.30 [6]).