| People v Joyner |
| 2015 NY Slip Op 02500 [126 AD3d 1002] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Alexander Joyner, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andLinda Cantoni of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kohm, J.), rendered February 29, 2012, convicting him of criminal possession of aweapon in the second degree (two counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, andthe matter is remitted to the Supreme Court, Queens County, for further proceedingsconsistent with CPL 160.50.
On May 22, 2010, New York City Police Department Detective Michael Wallen wasassigned as the arresting officer in a police raid of a party hosted by the "Booty Ranch"organization, which was known for throwing parties where deals for prostitution weremade. There were 60 to 100 people at the party. There were four undercover officersworking with the investigation. One of those undercover officers, referred to as UC 155,provided the information to Detective Wallen that led to the defendant's arrest.
At about 4:40 a.m. on May 22, 2010, a field team of 20 to 25 police officers raidedthe Booty Ranch party. UC 155 testified at trial that, during the "pandemonium,""chaos," and "confusion" that ensued during the police raid, and while in a dimly litroom, he saw the defendant reach down into his crotch, pull out an unidentified object,lift a window shade, and toss the object at a closed window. The object bounced off thewindow and back into the defendant's hand. UC 155 then observed the defendant go toan adjacent window, and place the unidentified object to the side of an air conditionerthat was installed in that adjacent window. The defendant then moved away, and sat onthe floor. At this time, in order to maintain his cover, UC 155 reached into his ownpockets and pretended to be extracting drugs so that he appeared to be in need of a placeto hide them, since uniformed police were arriving, and other people at the party were"ditching" whatever contraband they had in their possession. However, the Peoplepresented no evidence with respect to any drugs recovered as a result of the policeraid.
[*2] UC 155 further testified that, oncehe had an opportunity to look at the window in which the air conditioner was installed,he observed a small caliber firearm. UC 155 averred that he placed himself at a locationwhere nobody else could access the firearm, and that he was the closest person to the airconditioner. According to UC 155, when Detective Wallen entered the room, UC 155signaled to him with respect to the location of the gun and the defendant. At trial,Detective Wallen testified to the contrary, and explained that, upon entering the roomduring the police raid, he observed that there were people in between UC 155 and thearea where the gun was located. On redirect examination, conducted on the day after hegave his direct testimony, Detective Wallen changed his testimony to state that UC 155was the closest person to the air conditioning unit, despite testifying twice on directexamination that there were people between UC 155 and the air conditioning unit.
Notably, UC 155 also testified that, prior to observing the defendant, he hadobserved another person at the party carrying a gun in a custom-made holster who "waswalking around like security." Although this person was detained after the police raidwith the empty holster still on his person, he was not arrested, and no gun was found onhis person. Other than the gun that was temporarily placed next to the window in whichthe air conditioner was installed, no other weapons were recovered from the scene. Thesubject gun was never tested for fingerprints or DNA. UC 155 testified that he wassearched for weapons prior to entering the party, and that he did not bring a gun into theparty.
The defendant also testified at trial that he was thoroughly patted down before heentered the premises where the party was held. The defendant further testified that he didnot possess a gun, did not toss a gun against a window, and did not attempt to hide a gunnear the air conditioner or the window in which the air conditioner was installed. Heexplained that, during the police raid, when everyone was "running like roaches," hetossed a "blunt" that he was holding in his hand, and was searching for a place in whichto dispose of the "weed in [his] pocket." He further testified that he ran to the vicinity ofthe rear windows while attempting to hide a bag of marijuana, and that there was a"bunch of people" standing there. He also testified that people were "running to thewindows." According to the defendant, he eventually tossed his marijuana by a stereospeaker, not in or near the window in which the air conditioner was installed.
Based upon UC 155's failure to produce his memo book, the Supreme Court gave anadverse inference charge permitting the jury to "infer that all or part of [the] contents of[the memo book] may not have supported and may have contradicted the People'sposition at this trial." Although the defendant objected to the wording of the charge onthe ground that it did not specifically relate to UC 155's testimony, the People contendedthat the broad language of the charge was appropriate.
A combination of factors deprived the defendant of a fair trial. The Peopleintroduced evidence, including photographs, to show that there was prostitution at theparty, but did not connect the defendant to any of the prostitution or to the Booty Ranchorganization. In addition, the prosecutor cross-examined the defendant with respect tothe shooting death of a friend of his years prior to the date of the crime charged. Duringsummation, the prosecutor made several comments suggesting that the someone could be"guilty by association" with the Booty Ranch Organization. The admission into evidenceof photographs showing prostitutes, the prosecutor's cross-examination of the defendantabout the shooting death of his friend, and the prosecutor's improper "guilty byassociation" comments during summation deprived the defendant of a fair trial (seePeople v Crimmins, 36 NY2d 230, 237-238 [1975]; People v Morgan, 111 AD3d1254, 1255-1256 [2013]; People v Leuthner, 216 AD2d 327 [1995];People v Parker, 178 AD2d 665 [1991]).
Moreover, upon the exercise of our factual review power, we conclude that theverdict convicting the defendant on two counts of criminal possession of a weapon in thesecond degree was against the weight of the evidence. "Upon [a] defendant's request, theAppellate Division must conduct a weight of the evidence review" and, thus, "adefendant will be given one appellate review of adverse factual findings" (People v Danielson, 9 NY3d342, 348 [2007]). "If a finding in favor of the defendant would not have beenunreasonable, then this Court 'must weigh conflicting testimony, [*3]review any rational inferences that may be drawn from theevidence and evaluate the strength of such conclusions' " (People v Curry, 112 AD3d843, 844 [2013], quoting People v Danielson, 9 NY3d at 348). "Once thisCourt conducts such an analysis, it must then decide whether the verdict finding thedefendant guilty beyond a reasonable doubt was warranted" (People v Curry, 112AD3d at 844). This Court essentially "sits as a thirteenth juror and decides which factswere proven at trial" (People v Danielson, 9 NY3d at 348). If it appears that thefactfinder failed to give the evidence the weight it should be accorded, then this Courtmay set aside the verdict and dismiss the accusatory instrument or any reversed count(see CPL 470.20 [5]; People v Romero, 7 NY3d 633, 643-644 [2006]; Peoplev Mateo, 2 NY3d 383, 410 [2004]). Application of these principles here warrants ourconclusion that reversal is appropriate.
To sustain a conviction of criminal possession of a weapon in the second degreeunder count one of the indictment, the People were obligated to establish, beyond areasonable doubt, that the defendant possessed a loaded firearm with the intent to use itunlawfully against another (see Penal Law § 265.03 [1] [b]).Possession of a loaded weapon is presumptive evidence of an intent to use it unlawfullyagainst another (see Penal Law § 265.15 [4]; People v Vincent, 80 AD3d633, 634 [2011]).
To sustain a conviction of criminal possession of a weapon in the second degreeunder count two of the indictment (Penal Law § 265.03 [3]), the Peoplewere obligated to establish, beyond a reasonable doubt, that the defendant knowinglypossessed a loaded firearm outside his home or place of business.
"Knowing possession of tangible property may in the appropriate circumstances beinferred from evidence showing that the defendant had the property in his physicalpossession, or that he exercised dominion or control over the property by a sufficientlevel of control over the area in which the property is found or over the person fromwhom the property is seized" (People v Muhammad, 16 NY3d 184, 188 [2011] [internalquotation marks and brackets omitted]; see People v Manini, 79 NY2d 561, 573[1992]; see also Penal Law § 10.00 [8]). Upon the exercise of ourfactual review power (see CPL 470.15), we conclude that acquittal of the chargesfor criminal possession of a weapon in the second degree under counts one and two ofthe indictment would not have been unreasonable based upon the evidence presented (see People v Davis, 117 AD3d840, 843 [2014]; People vMarchena, 116 AD3d 713, 714 [2014]). Indeed, the jury would have beenentitled to credit the defendant's testimony, and to discredit the entirety of the People'switnesses based upon, among other things, the adverse inference charge as given and theinconsistent testimony of the People's witnesses.
Moreover, UC 155 admittedly never observed a firearm on the defendant's person atany time. Both UC 155 and Detective Wallen agreed that, at the time that DetectiveWallen entered the room, the defendant was positioned further away than UC 155 fromthe area where the gun was found. However, Detective Wallen and UC 155 contradictedeach other as to whether there were people in between UC 155 and the gun. Thisinconsistency undermines the People's contention that the defendant had constructivepossession of the gun found in the window (see People v Muhammad, 16 NY3dat 188; People v Manini, 79 NY2d at 573).
The People adduced no evidence that the window in which the air conditioner wasinstalled had been checked prior to when the defendant walked near it. UC 155 nevertestified as to how much time elapsed between his observation of the defendant'splacement of an unidentified object in the window area and his observation of the gun. Inlight of the "pandemonium" that ensued during the police raid, the number of people inthe vicinity of the gun attempting to discard contraband, and the dim lighting, we findUC 155's observations of the defendant to be unreliable. Moreover, UC 155's credibilitywas undermined by his failure to produce his memo book, and the inconsistency betweenhis and Detective Wallen's testimony.
Finally, we also reject as incredible any suggestion, based on UC 155's testimony,that the unidentified object that the defendant allegedly tossed against a window, andwhich bounced back into the defendant's hand, was a gun, as argued by the People. "Therule is that testimony which is incredible and unbelievable, that is, impossible of beliefbecause it is manifestly untrue, physically impossible, contrary to experience, orself-contradictory, is to be disregarded as being [*4]without evidentiary value, even though it is notcontradicted by other testimony or evidence introduced in the case" (People vGarafolo, 44 AD2d 86, 88 [1974] [internal quotation marks omitted]; see Cruz v New York City Tr.Auth., 31 AD3d 688, 690 [2006], affd 8 NY3d 825 [2007]; People vLebron, 184 AD2d 784, 785 [1992]). Indeed, UC 155 insisted that he could notidentify the object that was thrown against the window, and he assumed that the objectwas a container or bag of drugs.
Accordingly, the evidence presented at trial did not establish, beyond a reasonabledoubt, that the defendant was either in physical or constructive possession of the firearmfound near the window. Thus, the judgment must be reversed and the indictmentdismissed (see CPL 470.20 [5]; People v Romero, 7 NY3d 633 [2006]; People vDavis, 117 AD3d at 843).
In light of our determination, we need not reach the defendant's remainingcontentions. Hall, Austin and Barros, JJ., concur.
Dillon, J.P., dissents, and votes to affirm the judgment. I respectfully dissent from mycolleagues, and vote to affirm the judgment of conviction.
During the early morning hours of May 22, 2010, the defendant was attending a"Booty Ranch" party at a two-story building on Sutphin Avenue in Queens, where menmeet scantily-clad prostitutes to exchange information that will lead to future transactionsbetween them. At least two undercover officers were stationed in the room of thebuilding where the party was being held, and a police raid began at approximately 4:40a.m. The defendant was arrested at the scene, and ultimately convicted by a jury of twocounts of criminal possession of a weapon in the second degree, one under Penal Law§ 265.03 (1) (b), involving the defendant's possession of a loaded gun withintent to use it against another, and one under Penal Law § 265.03 (3),involving the defendant's knowing possession of a loaded firearm outside of his home orplace of business.
Here, in conducting our independent review of the weight of the evidence, I amsatisfied that the verdict of guilt is not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). The defendant argues that his convictions cannot survive a weight ofthe evidence review, primarily because another patron at the party had been observedwith a holster, incoming patrons were searched at the main door downstairs, and anundercover officer, in all the confusion and excitement surrounding the police raid, couldnot have reliably observed the defendant. However, simply because another patron waswearing an empty holster and incoming patrons were searched does not mean that thedefendant did not possess the loaded and operable gun. In fact, one of the undercoverofficers testified that, in light of the cursory nature of the search conducted upon him atthe door, had he been carrying his own service weapon, he could have smuggled it intothe party despite the search. The jury could have rationally inferred that the defendantcould have done the same or obtained the gun through other means.
Moreover, regarding the reliability of the undercover officer's observations at thetime of the raid, the defendant actually drew attention to himself, according to the officer,by running through the crowd shouting "Five-O," and scrambling to hide an object at ornear an air conditioner, within mere feet of the officer. The lighting, though somewhatdimmed, was sufficient for the undercover officer to describe the defendant's brownclothing and red baseball cap. The defendant matched the undercover officer'sdescription of him, admitted his presence at the scene, and admitted scrambling at the farend of the room to hide an object. While the defendant claimed that the object he hid wasmarijuana, the undercover officer recovered a gun, which was operable and loaded, froma window air conditioner installed at the far end of the room. On this record, theundercover police officer's testimony, which the jury found credible, and which wassupported by other evidence in crucial respects, supports the defendant's conviction andis not against the weight of the evidence.
[*5] In reaching its conclusion that the undercover officer's testimony was incredible,the majority places great emphasis upon the portion of the officer's testimony that the gunbounced back into the room from the window. Such evidence is not problematic, as thedefendant testified on direct examination that he attempted to "toss" the object from hishand, from close enough to the window to be able to touch its window shade, which is tobe distinguished from a "throw" of the object. On cross-examination, the undercoverofficer described the defendant's action as a "lob" that the officer demonstrated, andwhich the court described as "an upward underhand motion." If, as the officer described,the object was merely lobbed from a close distance, it does not strain credibility that itdid not crash through the glass of the window. There is no evidence in the recordregarding the thickness or strength of the window. Based upon the weight of the credibleevidence, I find that the jury was justified in finding the defendant guilty beyond areasonable doubt.
In the interest of completeness, I would suggest that, contrary to the defendant'scontention, the language of the adverse inference charge was appropriate under thecircumstances of this case (seePeople v Asaro, 94 AD3d 773 [2012], affd 21 NY3d 677 [2013]; People v Kotler, 31 AD3d787 [2006]). Similarly, the Supreme Court properly instructed the jury on thedefinition of the term "possess," as set forth in Penal Law § 10.00 (8),including the definition of physical and constructive possession (see CJI2d[NY]Possession: Physical and Constructive; People v Pilgrim, 293 AD2d 496 [2002]).The defendant's contention that he was deprived of a fair trial by certain remarks made bythe prosecutor during summation is largely unpreserved for appellate review (seeCPL 470.05 [2]; People vWright, 90 AD3d 679 [2011]). In any event, the challenged remarks were, in myview, fair comment on the evidence, were permissible rhetorical comment, constituted afair response to defense counsel's summation, or otherwise do not warrant reversal(see People v Galloway, 54 NY2d 396, 401 [1981]; People v Ashwal, 39NY2d 105, 109-110 [1976]; People v Hernandez, 92 AD3d 802, 803 [2012]). Thedefendant was not deprived of the effective assistance of counsel, as the record revealsthat defense counsel provided meaningful representation (see People vBenevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).Finally, the photographs in evidence were not prejudicial, but merely completed thenarrative of events leading up to the defendant's arrest, and, in any event, any error inadmitting them was harmless.
For all of the foregoing reasons, the defendant's judgment of conviction should beaffirmed.