| People v Bellamy |
| 2014 NY Slip Op 04262 [118 AD3d 1113] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWilliam Bellamy, Appellant. |
Carolyn B. George, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered November 7, 2011, upon a verdict convicting defendant of the crimes ofcriminal possession of a weapon in the second degree, criminal possession of acontrolled substance in the fourth degree and criminal possession of a weapon in thethird degree.
Police officers responded to a 911 call reporting a man with a gun on a city street andwere informed that the suspect had entered a two-family row house. Officers approachedthe house and, after speaking with a female resident of the first-floor apartment throughan open window, ordered her, defendant and their young son out of the building. Whendefendant, who was on parole at the time, came out of the house, he was identified by the911 caller as the individual who had brandished a weapon. A security sweep of thebuilding resulted in an officer observing a handgun located in a boot in the first floorhallway leading to defendant's apartment. Defendant's parole officer then arrived at thescene and, upon conducting a search of defendant's apartment, located—amongother things—a powdery substance later determined to be heroin. Following a jurytrial, defendant was convicted of criminal possession of a weapon in the second degree,criminal possession of a controlled substance in the fourth degree and criminalpossession of a weapon in the third degree. County Court sentenced defendant as apersistent violent felony offender to an aggregate term of 20 years to life in prisonfollowed by three years of postrelease supervision. He now appeals.
[*2] Defendant challenges the legal sufficiency of theevidence supporting the conviction for criminal possession of a weapon in the seconddegree on the ground that the People did not establish that he constructively possessedthe weapon (see Penal Law § 265.03 [3]). We are not persuaded.Constructive possession can be established by evidence that the defendant had dominionand control over the weapon or the area in which it was found (see People v Dawson, 110AD3d 1350, 1352 [2013]; People v Stewart, 95 AD3d 1363, 1364 [2012], lvdenied 19 NY3d 1001 [2012]). Exclusive access, however, is not required to sustaina finding of constructive possession (see People v Stewart, 95 AD3d at 1364; People v Pinkney, 90 AD3d1313, 1314-1315 [2011]). Here, the People established that defendant resided in thefirst-floor apartment with his girlfriend and their young son, and the loaded handgun wasfound in a man's boot located in a hallway leading to that apartment among shoesbelonging to defendant's girlfriend and his son. The only other tenant in the building wasan elderly woman who lived on the second floor. Although defendant denied ownershipof the boots, he admitted that he kept some of his belongings in the hallway, and thePeople established the presence of his DNA on the weapon. The rational inferences to bedrawn from this evidence are sufficient to support the conclusion that defendantexercised dominion and control over the weapon and the area in which it was found(see People v Pinkney, 90 AD3d at 1314-1315; People v Robinson, 72 AD3d1277, 1277-1278 [2010], lv denied 15 NY3d 809 [2010]).
Defendant's contention that the People failed to prove that the heroin found in theapartment was more than an eighth of an ounce, as required to support the conviction forcriminal possession of a controlled substance in the fourth degree (see Penal Law§ 220.09 [1]), is also without merit. The People presented testimony that thesubstance, weighing more than five grams, had an aggregate weight over one eighth ofan ounce. Defendant's claim that the substance contained only two grams of heroin isirrelevant because the crime is not based on the weight of the pure drug but on "theweight of the substance which contains the drug, irrespective of the amount of the drugin the substance" (People v Mendoza, 81 NY2d 963, 965 [1993] [internalquotation marks and citation omitted]; accord People v Acevedo, 112 AD3d 985, 986[2013]).
We likewise find no merit to defendant's challenges to the pretrial suppressionrulings. As an initial matter, we agree with County Court's conclusion that defendant hadno standing to challenge the seizure of the weapon in the boot found in the hallway of theapartment house. Standing requires a defendant to have a legitimate expectation ofprivacy, which exists where a defendant manifests a subjective expectation of privacy inthe place or item searched and there is an objective "expectation of privacy justifiableunder the circumstances" (People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]).At the suppression hearing, the People established that the layout of the buildingincluded a single front entrance that opened into a hallway leading to defendant'sapartment and containing a staircase to the second-floor apartment. Each apartment hadits own separate, locked entrance and the hallway was a common area accessible to alltenants and their invitees. Under these circumstances, defendant had no reasonableexpectation of privacy in the common hallway and, thus, no standing to challenge theseizure of the weapon found in the boot located there (see People v Ponder, 54NY2d 160, 166 [1981]; People v Muldrow, 273 AD2d 814, 815 [2000], lvdenied 95 NY2d 891 [2000]; People v Murray, 233 AD2d 956, 956 [1996],lv denied 89 NY2d 927 [1996]).
Defendant also challenges the search of his apartment by his parole officer. To beconsidered lawful, such a search must be rationally and reasonably related to the paroleofficer's duty to supervise defendant (see People v Huntley, 43 NY2d 175, 179[1977]; People v Walker, [*3]80 AD3d 793, 794[2011]; People v Burry, 52AD3d 856, 858 [2008], lv dismissed 10 NY3d 956 [2008]). As the evidenceat the suppression hearing established that defendant's parole officer arrived on the sceneafter defendant had been identified as the person with a gun on the street by the 911caller and the gun in the boot had been found, the subsequent search of his apartment todetermine whether there was any further evidence of the violation of the conditions of hisparole was justified (see Peoplev Nappi, 83 AD3d 1592, 1593-1594 [2011], lv denied 17 NY3d 820[2011]; People v Walker, 80 AD3d at 794).
Defendant's claim that the showup identification was unduly suggestive is alsowithout merit, inasmuch as it was "conducted in close geographic and temporalproximity to the crime" (Peoplev Toye, 107 AD3d 1149, 1150 [2013], lv denied 22 NY3d 1091 [2014][internal quotation marks and citations omitted]; accord People v Stroman, 107 AD3d 1023, 1025 [2013],lv denied 21 NY3d 1046 [2013]). Nor does the fact that defendant was identifiedwhile handcuffed and standing with a police officer render the showup unduly suggestiveas a matter of law (see People vAugust, 33 AD3d 1046, 1049 [2006], lv denied 8 NY3d 878 [2007]; People v Armstrong, 11 AD3d721, 722 [2004], lv denied 4 NY3d 760 [2005]).
Likewise, we find no basis to suppress the statements that defendant made to hisgirlfriend while waiting to be booked at the police department and while on a telephoneline he knew was recorded (seePeople v Kenyon, 108 AD3d 933, 936 [2013], lv denied 21 NY3d 1075[2013]; People v O'Hanlon, 252 AD2d 670, 671 [1998], lv denied 92NY2d 951 [1998]; People v Davis, 168 AD2d 565, 566 [1990], lv denied77 NY2d 960 [1991]). Nor is there any basis to disturb County Court's conclusion thatthe police responded appropriately to the rapidly developing circumstances by taking thesafety precaution of detaining defendant based on the report that an individual with a gunhad entered the residence from which defendant then emerged (see People v DeBour, 40 NY2d 210, 223 [1976]; People v Stroman, 107 AD3d at 1024; People v Mabeus, 68 AD3d1557, 1560-1561 [2009], lv denied 14 NY3d 842 [2010]). Further, thesubsequent identification of defendant and discovery of the weapon provided sufficientprobable cause for his arrest (see People v Stroman, 107 AD3d at 1024;People v Bennett, 189 AD2d 924, 925 [1993]).
Although defendant claims that the People were improperly allowed to elicittestimony from a witness regarding a second weapon found in a hallway closet, therecord reveals that defendant opened the door to this questioning by first introducingevidence regarding that weapon. County Court did not abuse its discretion by allowingthe People to clarify the issue on redirect with appropriately tailored questionsaccompanied by an appropriate limiting instruction (see People v Massie, 2NY3d 179, 183-184 [2004]; People v Wagner, 72 AD3d 1196, 1198 [2010], lvdenied 15 NY3d 779 [2010]; People v Ward, 10 AD3d 805, 806 [2004], lvdenied 4 NY3d 768 [2005]).
Defendant's motion to reopen the suppression hearing was properly denied inasmuchas he did not identify any facts not available at the time of the original hearing and, inany event, the inconsistencies elicited during trial were not pertinent and would not havechanged the outcome (see CPL 710.40 [4]; People v Fuentes, 53 NY2d892, 894 [1981]; People vTucker, 41 AD3d 210, 211-212 [2007], lv denied 9 NY3d 882 [2007],cert denied 552 US 1153 [2008]; People v DeJesus, 222 AD2d 449, 450[1995], lv denied 87 NY2d 920 [1996]).
We further note that defendant's claim of ineffective assistance of counsel is limitedto matters outside the record on appeal and is, thus, more properly considered in thecontext of a [*4]CPL article 440 motion (see People v Lohnes, 112AD3d 1148, 1150 [2013]; People v Cade, 110 AD3d 1238, 1241 [2013], lvdenied 22 NY3d 1155 [2014]). Given defendant's extensive and violent criminalhistory, we find no abuse of County Court's discretion or extraordinary circumstanceswarranting a reduction of his sentence (see People v Pope, 96 AD3d 1231, 1235 [2012], lvdenied 20 NY3d 1064 [2013]; People v Portee, 56 AD3d 947, 950 [2008], lvdenied 12 NY3d 820 [2009]; People v Jackson, 2 AD3d 893, 897 [2003], lvdenied 1 NY3d 629 [2004]). Finally, we have considered defendant's remainingcontentions and find them to be without merit.
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the judgment isaffirmed.