| People v LaDuke |
| 2016 NY Slip Op 04978 [140 AD3d 1467] |
| June 23, 2016 |
| Appellate Division, Third Department |
[*1](June 23, 2016)
| The People of the State of New York,Respondent, v Evan R. LaDuke, Appellant. |
Richard V. Manning, Parishville, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchely of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Clinton County (McGill,J.), rendered January 21, 2014, upon a verdict convicting defendant of the crimes ofcriminal possession of a weapon in the second degree and criminal possession of aweapon in the fourth degree.
Jacob LaDuke, defendant's brother, was arrested for gun-related crimes in the earlymorning hours of March 14, 2013. Later that morning, police staked out the apartmentwhere defendant and LaDuke resided. After defendant carried a black duffel bag fromthe apartment and placed it in his vehicle, he was apprehended. As relevant todefendant's charges, a search revealed that the duffel bag contained a loaded Glock 17pistol and his vehicle contained a set of metal knuckles. During his ensuing policeinterview, defendant maintained that the pistol belonged to LaDuke and that, uponlearning that LaDuke had been arrested, he attempted to bring the pistol to the policestation and surrender it. Following a jury trial, defendant was convicted of criminalpossession of a weapon in the second degree and criminal possession of a weapon in thefourth degree. Defendant appeals.
We affirm. Initially, we disagree with defendant that his conviction for criminalpossession of a weapon in the second degree was against the weight of the evidence. Asrelevant to the challenged conviction, a person is guilty of criminal possession of aweapon in the second degree when "such person possesses any loaded firearm" outsideof his or her home or place of business (Penal Law § 265.03 [3]; seePenal Law § 265.00 [3] [a]; People v Oliver, 135 AD3d [*2]1188, 1190 [2016], lv denied 27 NY3d 1003[2016]). "In some circumstances, however, despite possessing a proscribed weapon, aperson may not be guilty due to 'the innocent nature of the possession' " (People v Curry, 85 AD3d1209, 1211 [2011], lv denied 17 NY3d 815 [2011], quoting People vAlmodovar, 62 NY2d 126, 130 [1984]), and the affirmative defense of "[t]emporaryand lawful possession may be established where there is 'a legal excuse for having theweapon' " (People v Curry, 85 AD3d at 1211, quoting People vWilliams, 50 NY2d 1043, 1045 [1980]; see People v Alls, 117 AD3d 1190, 1191-1192 [2014]).Defendant does not take issue with the proof presented to show that the pistol was loadedand operable which, in any case, is amply supported by the record. Defendant rathercontends that there is a lack of credible evidence to establish that his possession of thepistol was not temporary and innocent.
A different verdict would not have been unreasonable given defendant's trialtestimony and, thus, we must "weigh the relative probative force of conflicting testimonyand the relative strength of conflicting inferences that may be drawn from the testimony"(People v Novick, 126AD3d 1134, 1134 [2015] [internal quotation marks and citations omitted], lvdenied 25 NY3d 1075 [2015]; accord People v Fournier, 137 AD3d 1318, 1319 [2016]).Dean Shedd testified that, in early March 2013, he sold a Glock 17 pistol to defendant inVermont. Shedd testified that defendant identified himself as Sam Connors during theirinteractions and an envelope addressed to Sam Connors was found in defendant'svehicle. Also on March 3, 2013, defendant's vehicle made a round trip to Vermont andphone records established that Shedd corresponded with defendant's phone via textmessages. With respect to the event precipitating LaDuke's arrest, Nicholas Mackiewicztestified that, on March 14, 2013, LaDuke and defendant threatened him whilebrandishing weapons. LaDuke was pulled over on Oak Street, near Mackiewicz'sresidence, and arrested. Although defendant was not arrested until later that day, policestopped defendant's vehicle on the same street around the time of LaDuke's arrest. Attrial, LaDuke corroborated parts of Mackiewicz's account and testified that defendantowned the pistol. Although LaDuke's mother testified to his untruthfulness and bothLaDuke and Mackiewicz admitted that they were under the influence of drugs during theevents to which they testified, granting deference to the jury's credibility determinations,the jury's verdict convicting defendant of criminal possession of a weapon in the seconddegree was not against the weight of the evidence (see People v Alls, 117 AD3dat 1192; People v Curry, 85 AD3d at 1211; People v Vargas, 60 AD3d 1236, 1238-1239 [2009], lvdenied 13 NY3d 750 [2009]; People v Myers, 265 AD2d 598, 600[1999]).
We are unpersuaded by defendant's further contention that he was deprived of a fairtrial based on County Court's alleged errors. Initially we find unpreserved defendant'sassertion that the court violated the general rule governing the admissibility of scientificevidence formulated in Frye v United States (293 F 1013 [1923]) by allowingevidence obtained from a license plate reader without a showing of general acceptance inthe scientific community, inasmuch as he failed to object to the evidence on this ground(see CPL 470.05 [2]; People v Gallup, 302 AD2d 681, 684 [2003], lvdenied 100 NY2d 594 [2003]). In any event, as the investigator made the actualmatches by analyzing a photograph of defendant's license plate, there was no Fryeviolation (see People vBurnell, 89 AD3d 1118, 1121-1122 [2011], lv denied 18 NY3d 922[2012]).
Nor did County Court err in handling two jury notes. CPL 310.30 " 'imposestwo separate duties on the court following a substantive juror inquiry: the duty to notifycounsel and the duty to respond' " (People v Alcide, 21 NY3d 687, 691-692 [2013], quotingPeople v O'Rama, 78 NY2d 270, 276 [1991]). However, where, as here, "defensecounsel had notice of the contents of the note and the court's [intended] response, andfailed to object at that time," there is no mode of proceedings error and the claim isunpreserved for our review (People v Ramirez, 15 [*3]NY3d 824, 826 [2010]; see People v Alcide, 21NY3d at 694). That said, in the first note, the jury listed five specific requests for thereadback of testimony and the record confirms that the court reporter proceeded with thereadback at the court's direction and without objection (see CPL 310.30; People v Kahley, 105 AD3d1322, 1323-1325 [2013]). As to the second note, the court properly reread theinstructions on criminal possession of a weapon in the second degree, including theinstruction on temporary lawful possession, in response to the jury's request forclarification—again without objection. Although the record does not expresslyindicate whether defendant was present when the court notified counsel and responded tothe jury's requests, the absence of a notation that defendant was present is insufficient toestablish his absence (seePeople v Pittman, 109 AD3d 1080, 1082 [2013], lv denied 22 NY3d1043 [2013]). Finally, we find no mode of proceedings error when the court did notadmonish the jury with the exact language of CPL 270.40 before a recess indeliberations, because the court's admonishments, throughout the trial, adequatelyconveyed to the jury its function (see People v Williams, 46 AD3d 585, 585-586 [2007],lv denied 10 NY3d 772 [2008]).
We also find that defendant received the effective assistance of counsel. During juryselection, County Court stated that "[t]he grand jury is a group of citizens very similar toyou that . . . made a decision as to whether there is a probability that thisdefendant committed the acts charged." Defense counsel did not err in failing to object,because, when considered as a whole, together with the court's instruction immediatelythereafter that the jury could not "consider the fact that [defendant has] been indicted asany evidence of guilt" and that the indictment "has no bearing on whether [defendant is]guilty or not," the instruction was not likely to confuse the jury as to its role and theproper burden of proof at trial (see CPL 70.10 [2]; 190.65 [1]; People vFields, 87 NY2d 821, 823 [1995]). Likewise, although it was improper for theprosecutor to question prospective jurors about their attitudes towards the laws of NewYork pertaining to pistol permits (see People v Boulware, 29 NY2d 135, 141[1971], cert denied 405 US 995 [1972]; People v Addison, 94 AD3d 1539, 1540 [2012], lvdenied 19 NY3d 994 [2012]), defendant has failed to show the absence of a strategicreason for counsel's failure to object, and the comments were not so prejudicial as tosupport a finding of ineffective assistance of counsel (see People v Benevento, 91NY2d 708, 712-713 [1998]; People v Albanese, 38 AD3d 1015, 1019 [2007], lvdenied 8 NY3d 981 [2007]).
Further, although defense counsel failed to object to the People's improper bolsteringof Shedd's testimony identifying defendant as the buyer of the pistol, such failure did notconstitute the ineffective assistance of counsel. It is well settled that "testimony regardingpretrial out-of-court photographic identification . . . constitutes improperbolstering of trial testimony and is prohibited, except where defendant opens the door"(People v Allah, 57 AD3d1115, 1118 [2008], lv denied 12 NY3d 780 [2009]; see People vLindsay, 42 NY2d 9, 12 [1977]; People v Rivera, 31 AD3d 1060, 1061 [2006], lvdenied 7 NY3d 869 [2006]). Here, defense counsel opened the door during hisopening statement by describing defendant and LaDuke as "basically mirror images ofeach other." Therefore, it was proper for the People to submit evidence that Sheddidentified defendant in a photo array and that, when given a separate photo arraycontaining LaDuke's picture, he did not recognize any photographs (see People vAllah, 57 AD3d at 1118; People v Heckstall, 45 AD3d 907, 909 [2007], lvdenied 10 NY3d 766 [2008]; People v Rivera, 31 AD3d at 1061; Peoplev Sanders, 224 AD2d 556, 556-557 [1996], lv denied 88 NY2d 941 [1996]).Also, as defense counsel referred to the photo arrays in his closing argument, we cannotsay that there was no strategic or legitimate reason for opening the door (see People vBenevento, 91 NY2d at 712-713; People v Allah, 57 AD3d at 1118).
However, although the door had been opened to evidence that Shedd did not confusedefendant with LaDuke, it was improper bolstering for the People to submit thetestimony of [*4]three witnesses describing Shedd'sphoto array identification. While it was proper for the People to lay a foundationregarding the photo array evidence through the testimony of two police officers (see People v Ennis, 41 AD3d271, 274 [2007], affd 11 NY3d 403 [2008], cert denied 556 US 1240[2009]), it was improper bolstering to confirm Shedd's identification of defendant withtheir testimony (see People vMcCullen, 63 AD3d 1708, 1709 [2009], lv denied 13 NY3d 747[2009]). However, given Shedd's unequivocal identification of defendant and theoverwhelming evidence establishing that defendant's possession of the pistol was neithertemporary or innocent, any error was harmless (see People v Allah, 57 AD3d at1118; People v Rivera, 31 AD3d at 1061).
Defendant was not denied the effective assistance of counsel when defense counselfailed to move for a trial order of dismissal on the ground that there was legally sufficientevidence to support his convictions (see People v Caban, 5 NY3d 143, 154-155 [2005]; People v Tolliver, 93 AD3d1150, 1151 [2012], lv denied 19 NY3d 968 [2012]). We also find thatdefendant failed to demonstrate the lack of strategic explanation for defense counsel'sdecision not to publish to the jury a video of defendant's police interview or in notobjecting to a jury charge regarding the voluntariness of defendant's statement, especiallygiven the numerous inconsistencies and contradictions made by defendant during theinterview (see People v Benevento, 91 NY2d at 712-713; People v Wheeler, 124 AD3d1136, 1138-1139 [2015], lv denied 25 NY3d 993 [2015]). Further, to theextent that defense counsel should have objected to the submission of certain evidence orto certain comments during the prosecutor's opening and closing statements, we find that,viewing the record as a whole, defense counsel "pursued a consistent, cogent theory ofdefense" and otherwise provided defendant with the effective assistance of counsel (People v Clarke, 110 AD3d1341, 1346 [2013], lv denied 22 NY3d 1197 [2014]; see People v Lapi, 105 AD3d1084, 1086-1088 [2013], lv denied 21 NY3d 1043 [2013]). Defendant'sremaining contentions have been examined and found to be without merit.
McCarthy, J.P., Egan Jr., Devine and Mulvey, JJ., concur. Ordered that the judgmentis affirmed.