| People v McGough |
| 2014 NY Slip Op 08269 [122 AD3d 1164] |
| November 26, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKevin McGough, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County(Hoye, J.), rendered January 31, 2012, upon a verdict convicting defendant of the crimesof criminal possession of a weapon in the second degree (five counts), criminalpossession of stolen property in the fourth degree (three counts), criminal possession of aweapon in the third degree and unlawful possession of marihuana.
In September 2010, defendant allegedly fired a gun in the direction of a vehicle.Shortly thereafter, the City of Schenectady Police Department executed a warrant tosearch defendant's residence in the City of Schenectady, Schenectady County.Defendant's father, mother, sister and brother were in the house during the search, anddefendant was found lying on the floor in a stair landing, next to a laundry basket thatcontained a disassembled semiautomatic pistol. Additional weapons, ammunition andother contraband were "strewn throughout the [residence]." In defendant's bedroom, thesearch team found a semiautomatic rifle with a foldable stock, a loaded high-capacitymagazine that fit the rifle, several loaded and unloaded magazines that fit the pistol foundin the basket, handgun and shotgun ammunition, a bulletproof vest and marihuana. Inanother bedroom—allegedly that of defendant's younger brother—the teamfound a loaded .380 semiautomatic pistol, a loaded .357 magnum revolver and severallong guns, shotguns and rifles. Additional rifles were found in the living room, and morefirearms and a bulletproof vest with projectile holes in it were found in the basement.Several of the weapons proved to be stolen.
[*2] Defendant was charged with various crimes and, following a jury trial, convictedof five counts of criminal possession of a weapon in the second degree, three counts ofcriminal possession of stolen property in the fourth degree, criminal possession of aweapon in the third degree and unlawful possession of marihuana. He was thereaftersentenced to an aggregate prison term of 15 years with five years of postreleasesupervision. Defendant appeals.
Defendant contends that his convictions are not supported by legally sufficientevidence and are against the weight of the evidence in that the People failed to prove thathe possessed any of the contraband on which the convictions are based, and further failedto support the conviction for criminal possession of stolen property in the fourth degreepremised upon the rifle with the foldable stock with proof that the weapon was operable.Defendant's contention regarding possession was preserved as to the convictionsinvolving weapons by his specific trial motion to dismiss, but the motion did not raisethat claim as to the conviction for unlawful possession of marihuana, nor did it raise theoperability challenge. Accordingly, the latter claims are unpreserved (see People vGray, 86 NY2d 10, 19 [1995]; People v Hilliard, 49 AD3d 910, 912 [2008], lvdenied 10 NY3d 959 [2008]). Nevertheless, in addressing defendant's weight of theevidence challenge, we necessarily review the adequacy of the evidence supporting theelements of all of the convictions (see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Hughes, 111 AD3d1170, 1171 [2013], lv denied 23 NY3d 1038 [2014]).
"Where, as here, the People proceed upon the theory of constructive possession, theybear the burden of establishing that defendant exercised dominion and control over thecontraband or the area where the contraband was found" (People v Dawson, 110 AD3d1350, 1352 [2013], lv denied 23 NY3d 1035 [2014] [internal quotationmarks, brackets and citations omitted]; accord People v Perry, 116 AD3d 1253, 1254 [2014];see Penal Law § 10.00 [8]). Such possession may be shown throughdirect or circumstantial evidence, and does not require proof that no one else had accessto the contraband or the premises (see People v Stewart, 95 AD3d 1363, 1364 [2012], lvdenied 19 NY3d 1001 [2012]; People v Pinkney, 90 AD3d 1313, 1314-1315 [2011]).While mere presence in the same location where contraband is found does not proveconstructive possession (see People v Edwards, 206 AD2d 597, 597 [1994],lv denied 84 NY2d 907 [1994]), the evidence here established thatdefendant—who was wearing only boxer shorts when he was found and identifiedone of the bedrooms where contraband was found as the one where he kept his clothesand belongings—was not merely present in the residence by happenstance at thetime of the search, but lived there. When found, he was lying in close proximity to thelaundry basket that contained the disassembled weapon, as though he had just placed itthere. Further, shortly before the search, he had been seen in physical possession of aweapon by witnesses who identified him as the individual who fired a black handgun inthe direction of a vehicle, and, later on the day of the shooting, another witness saw himholding a black semiautomatic pistol. Accordingly, the evidence went beyond defendant'smere presence in the residence at the time of the search and established "a particular setof circumstances from which a jury could infer possession" of the contraband (Peoplev Bundy, 90 NY2d 918, 920 [1997]; accord People v Perry, 116 AD3d at1255). The fact that some of the contraband was found in defendant's brother's bedroomand other parts of the house to which family members also had access does not precludea finding of constructive possession, as such possession may be joint, and all of the itemswere "readily accessible and available" to defendant (People v Hyde, 302 AD2d101, 105 [2003], lv denied 99 NY2d 655 [2003]; see People v Torres, 68NY2d 677, 679 [1986]; People v Smith, 215 AD2d 940, 941 [1995], lvdenied 86 NY2d 802 [1995]). Thus, viewed in the light most favorable to the People,the evidence of constructive possession was legally sufficient to support the convictionsfor which this issue was preserved (see People v Bellamy, 118 AD3d 1113, 1114 [2014];People v Pinkney, 90 AD3d at 1315; People v Mattison, 41 AD3d 1224, 1225 [2007], lvdenied 9 NY3d [*3]924 [2007]). Further, viewing theevidence in a neutral light and according due deference to the jury's assessments ofcredibility, the verdict was not against the weight of the evidence (see People vPerry, 116 AD3d at 1255; People v Buchanan, 95 AD3d 1433, 1435 [2012], lvdenied 22 NY3d 1039 [2013]).
A firearm must be shown to be operable before it can be the basis of a conviction forcriminal possession of stolen property in the fourth degree (see People v Rowland, 14AD3d 886, 886-887 [2005]; People v Burdash, 102 AD2d 948, 950 [1984];see generally People v Longshore, 86 NY2d 851, 852 [1995]). This convictionwas premised upon a 9 millimeter Luger Kel-Tech Sub 2000 semiautomatic rifle with afoldable stock that was found on the bed in defendant's bedroom. A detective whoparticipated in the search testified that a high capacity Glock 9 millimeter magazine,loaded with eight live rounds, was found on the floor next to the bed. The detectivetestified that this magazine was able to function in the rifle and, as a demonstration forthe jury, unfolded the stock and inserted the magazine into the weapon. The detectivefurther testified that the rifle was sent to the State Police Crime Lab in accord with thesame procedures that he had previously described with reference to other weapons foundin the residence; his prior testimony had established that these procedures includedtest-firing. Thus, the jury could reasonably have inferred that the rifle was operable (compare People v Conde, 34AD3d 1347, 1348 [2006]; People v Lugo, 161 AD2d 122, 123 [1990], lvdenied 76 NY2d 860 [1990]; see also People v Cavines, 70 NY2d 882, 883[1987]; Matter of ShallanyS., 11 AD3d 414, 414-415 [2004]), and the verdict on this charge was notagainst the weight of the evidence (see People v Blake, 172 AD2d 1027, 1027[1991], lv denied 78 NY2d 962 [1991]).
County Court did not violate defendant's right to a public trial by closing thecourtroom to spectators during the testimony of one of the People's witnesses. Adefendant's right to a public trial, although fundamental, is not absolute; a trial court mayexercise its discretion to close a courtroom, but must do so "sparingly . . .and then, only when unusual circumstances necessitate it" (People v Hinton, 31NY2d 71, 76 [1972], cert denied 410 US 911 [1973]; accord People vJones, 96 NY2d 213, 216 [2001]). Defendant's objection to the request for closureplaced the burden upon the People to establish that an open proceeding would cause "asubstantial probability of prejudice to a compelling interest" and to show that a link ornexus existed between that interest and the testimony in question (People v Jones,96 NY2d at 217; see People vWard, 6 AD3d 741, 742-743 [2004]). During the hearing on the request forclosure, the witness in question testified that, after he agreed to testify in defendant's trial,he had been threatened and involved in physical altercations on several occasions withindividuals who called him a "snitch." The witness testified that these individuals werelocal residents and that he had not agreed to testify in any other trials. He stated that hewas concerned for his own safety and that of a younger sibling, and stated that he wouldnot testify if required to do so in open court. Finding that the witness was the only personable to testify about defendant's possession of a handgun between the shooting incidentand the search, and taking into account the regular presence in the courtroom of a groupof defendant's relatives and supporters, the small size of the community, the youth of thewitness, his intent to remain in the community and his "valid fear," the court granted thePeople's request to close the courtroom to spectators during his testimony. The recordsupports County Court's findings; in view of its careful consideration of the matter andthe limited scope of the closure, we find no abuse of discretion (see People vJefferson, 248 AD2d 815, 817-818 [1998], lv denied 92 NY2d 926 [1998];see generally Waller v Georgia, 467 US 39 [1984]).
Finally, County Court did not violate CPL 300.10 (2) by instructing jurors not to"speculate" about "why other people were or were not arrested." We reject defendant'stheory that this instruction prejudiced defendant by improperly preventing the jury fromconsidering [*4]whether otherindividuals—specifically, defendant's parents and siblings—possessed thecontraband on which the charges against defendant were based. As previously noted,such consideration would not exclude defendant's criminal responsibility, as "possession,even if joint, is still possession" (People v Torres, 68 NY2d at 679; see Peoplev Perry, 116 AD3d at 1254). Defendant raised no other objections to the court'sinstructions relative to constructive possession, and we find no shortcomings in thechallenged charge (see CPL 300.10 [2]; People v Smith, 215 AD2d at941).
Peters, P.J., Stein, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.