| People v Morris |
| 2016 NY Slip Op 04979 [140 AD3d 1472] |
| June 23, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWillie F. Morris, Appellant. |
Mark Diamond, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered February 26, 2014, upon a verdict convicting defendant of the crime ofcriminal possession of a weapon in the second degree.
Following an incident in which he was alleged to have possessed a stolen handgun,defendant was charged with criminal possession of a weapon in the second degree andcriminal possession of stolen property in the fourth degree. An initial trial resulted indefendant's acquittal as to the criminal possession of stolen property in the fourth degreecharge, and a mistrial was declared as to the remaining count. At the conclusion of thesecond trial, a jury found defendant guilty of the sole remaining count of criminalpossession of a weapon in the second degree. Defendant was then sentenced, as a secondfelony offender, to 13 years in prison with five years of postrelease supervision.Defendant appeals.
Initially, defendant's nonspecific motion for a trial order of dismissal was insufficientto preserve his argument that the conviction was not supported by legally sufficientevidence (see People vHawkins, 11 NY3d 484, 492 [2008]; People v Parker, 127 AD3d 1425, 1426 [2015]; People v Carter, 40 AD3d1310, 1311 [2007], lv denied 9 NY3d 873 [2007]). Nor did his subsequentmotion to set aside the verdict pursuant to CPL 330.30 preserve the issue for our review;such relief is limited to issues that have been preserved and require reversal as a matter oflaw (see People v Howard,134 AD3d 1153, 1158 [2015], lv denied 27 NY3d 965 [2016]; People v Simmons, 111 AD3d975, 977 [2013], lv denied 22 NY3d 1203 [2014]). Nevertheless, defendant'sclaim that the verdict was against the weight of the evidence requires us to consider [*2]whether the proof at trial was adequate to establish eachelement of the charged offense (see People v Butler, 126 AD3d 1122, 1122 n [2015], lvdenied 25 NY3d 1199 [2015]). Where, as here, a different outcome would not havebeen unreasonable, we "view the evidence in a neutral light and weigh the probativeforce of the conflicting testimony and any rational inferences that may be drawn from theevidence" (People vGordon, 119 AD3d 1284, 1285 [2014], lv denied 24 NY3d 1002 [2014];see People v Danielson, 9NY3d 342, 348 [2007]; People v Nelligan, 135 AD3d 1075, 1076 [2016]).
During defendant's trial, the People called, among other witnesses, the two policeofficers who initially encountered defendant, Michael Fargione and Milton Johnson.Fargione testified that he and Johnson were on patrol in an unmarked police vehicle atapproximately 12:25 a.m. when they observed a crowd of people drinking and smokingin front of the Port Tavern on South Pearl Street in the City of Albany. Fargione parkedthe vehicle in the oncoming lane in front of the tavern with the intention of issuingcitations for loitering and obstructing the sidewalk. Upon exiting the vehicle, Fargionedetected the strong odor of marihuana. As the officers approached the crowd, heobserved defendant grab at his waistband and take off running while pushing otherpeople out of the way. Fargione pursued defendant on foot and ordered him to stop.Johnson followed. One other individual in the crowd also fled, but took a different routeand was not pursued by the officers. Defendant slipped and fell twice as the officers weregiving chase. Fargione observed that defendant was wearing one glove and, duringdefendant's second fall, also observed a black object in his left hand. After his secondfall, defendant regained his footing and turned a corner onto Broad Street. As defendantapproached a vacant, snow-covered lot on Broad Street, Fargione—who was stepsbehind defendant—saw defendant throw the black object into the vacant lot.Defendant continued to run a short distance before finally lying down in a snow bank,where Fargione placed him under arrest. Notably, Fargione testified that there was noone else running in front of defendant during the pursuit.
Johnson provided a similar account of the pursuit. He testified that, upon firstapproaching the crowd in front of the tavern, he observed defendant reach down andgrab a black object from the right side of his waistband area before defendant then fledthe scene, pushing people out of his path in the process. Johnson further testified that hewas following Fargione at a distance of approximately 10 to 20 feet. He observeddefendant fall twice before regaining his footing. Defendant eventually rounded a corneronto Broad Street, followed by Fargione, and both were briefly out of sight. Uponreaching Broad Street, Johnson observed that Fargione had placed defendant underarrest. Johnson testified consistently with Fargione that he did not observe anyone elserunning in front of defendant. Once defendant had been placed under arrest, otherofficers arrived at the scene.
One of these officers, Matthew Serpe, testified that he and Fargione conducted avisual search of the vacant lot and that he observed a "divot" in the snow, which he thenpointed out to Fargione. According to Fargione, the indentation was located about 30 to40 feet from where he had observed defendant throw the black object. Upon closerinspection of the divot, the officers discovered a black sock. Both officers testified thatthe sock did not show any effects from the weather; Serpe noted that it was "basicallyclean other than the snow on the bottom of it." Serpe then discovered that the sockcontained a loaded handgun which, he noted, was "body temperature." The People alsocalled several witnesses to testify regarding efforts to recover DNA evidence from thesock and handgun, as well as fingerprints from the handgun and shell casings. In sum,this testimony revealed that, although samples were obtained and tested from the sockand handgun, the DNA results were too complex to permit a conclusive identification.No fingerprints were recovered from the handgun or shell casings.
[*3] The defense offered a differing account of the events,which, in essence, suggested that another individual who had fled from the tavern mighthave discarded the handgun. Defendant's sister, Heavenly Morris, and his friend, MichaelWilson, each testified that they observed numerous individuals running away from thetavern prior to defendant's arrest. Wilson testified that, while running away from thetavern down Broad Street, he saw "a few people" running ahead of him. He alsoobserved a black male wearing a red or burgundy jacket make a throwing motion,although he conceded that he did not see if anything was actually thrown. Oncross-examination, he clarified that he knew that the black male in the red jacket was notdefendant because he had seen defendant at the tavern earlier and "believe[d] he had onblack or something like that." He also acknowledged that, although he was aware of thecharges against defendant, he had not come forward with the information until the daybefore his testimony. Defendant denied being aware that the individuals pursuing himwere police officers and asserted that there were "[a] dozen" other individuals fleeingfrom the tavern ahead of him. He also denied having possessed a handgun or a glove thatevening, and reiterated the testimony of Morris that he had been patted down forweapons earlier in the evening before entering another bar. On cross-examination,however, he conceded that the police property report listed a glove that was recoveredfrom his person. He also acknowledged that, while awaiting trial, he had beenincarcerated on the same cell block as Wilson, but asserted that he had merely askedWilson to testify as to his observations and did not discuss any of the factual details ofthe case.
Upon our independent review, we find the verdict supported by the weight of theevidence. The People presented ample evidence to establish that "defendant possessed aloaded firearm in a place other than his home or business" (People v Hawkins, 110 AD3d1242, 1242 [2013], lv denied 22 NY3d 1041 [2013]; see Penal Law§ 265.03 [3]). Although the testimony of the defense witnesses, if believed,provided an alternate account of the circumstances surrounding the discovery of theweapon, "[i]n reviewing the evidence, we accord great deference to the jury's credibilitydeterminations given its opportunity to hear the testimony and observe the witnesses'demeanor" (People vLopez-Aguilar, 64 AD3d 1037, 1037 [2009], lv denied 13 NY3d 940[2010]; see People vRomero, 7 NY3d 633, 644 [2006]; People v Rojas, 121 AD3d 1427, 1429 [2014], lvdenied 24 NY3d 1221 [2015]). Notably, the credibility of the defense witnesses wascalled into question by the People's ability to establish inconsistencies in their testimonyand facts that would support a reasonable inference of bias. Thus, viewing the evidencein a neutral light, we find that the jury's verdict was not against the weight of theevidence (see People vOliver, 135 AD3d 1188, 1191 [2016], lv denied 27 NY3d 1003 [2016];People v Butler, 126 AD3d at 1123; People v McFarland, 106 AD3d 1129, 1130-1131 [2013],lv denied 22 NY3d 1140 [2014]).
Defendant also argues that County Court erred in refusing to require further inquiryafter defense counsel's Batson objection to the People's allegedly discriminatoryuse of a peremptory challenge based on race (see generally Batson v Kentucky,476 US 79 [1986]). We disagree. Under the well-established Batson framework,an objecting party bears the burden of establishing on a prima facie basis that thechallenge was exercised on the basis of the juror's race; only if this initial burden issatisfied does the burden then shift to the nonmoving party to provide a race-neutralexplanation for the removal of the prospective juror (see id. at 96-98; Peoplev Smocum, 99 NY2d 418, 420 [2003]; People v Grafton, 132 AD3d 1065, 1066 [2015], lvdenied 26 NY3d 1145 [2016]). In order to satisfy his or her initial burden, theobjecting party must "set forth facts and other relevant circumstances to support aninference of discrimination" (People v Hecker, 15 NY3d 625, 651 [2010] [internalquotation marks and citation omitted], cert denied 563 US 947 [2011]). Here,defense counsel objected to the People's use of a peremptory challenge on the basis thatthe challenged prospective juror was the only black person on the panel. County Courtdetermined that the People were not required to provide an explanation on [*4]this basis alone. Defendant's counsel did not seek to arguethat similarly situated non-black jurors were seated or to otherwise "identify, allege ordevelop facts or other relevant circumstances sufficient to raise an inference that theprosecutor used the challenge for discriminatory purposes" (People v King, 277AD2d 708, 708 [2000], lv denied 96 NY2d 802 [2001]; see People v Guardino, 62AD3d 544, 545-546 [2009], affd 15 NY3d 625 [2010], cert denied563 US 947 [2011]; People vMcCloud, 50 AD3d 379, 381 [2008], lv denied 11 NY3d 738 [2008];compare People v Bolling, 79 NY2d 317, 324-325 [1992]). Accordingly, we findno error in the court's determination that defendant failed to meet his prima facie burdenand, thus, that the People were not required to provide a race-neutral explanation for theiruse of the peremptory challenge.
We reject defendant's assertion that he was denied a fair trial due to prosecutorialmisconduct, including allegedly improper comments made by the prosecutor throughoutthe trial. As an initial matter, his challenges to the propriety of the prosecutor's closingremarks and certain other remarks are unpreserved, as he failed to object (see People v Rivera, 124 AD3d1070, 1074-1075 [2015], lv denied 26 NY3d 971 [2015]; People v Clarke, 110 AD3d1341, 1345 [2013], lv denied 22 NY3d 1197 [2014]). With respect to theremaining instances of alleged misconduct, defendant contends that the prosecutor'sreference during his opening statement to the fact that the handgun wasstolen—and the evidence elicited to that effect—was prejudicial andunnecessary to prove that defendant's possession of the handgun was criminal becausethe parties had already stipulated that defendant did not possess a license to possess afirearm. Although the evidence that the handgun was stolen merely reinforced theevidentiary purpose of the stipulation, "the People were, despite the stipulation, stillrequired to prove their case beyond a reasonable doubt and present 'relevant materialevidence as to [each] element of a charged crime' " (People v White, 79 AD3d1460, 1463 [2010], lv denied 17 NY3d 803 [2011], quoting People vHills, 140 AD2d 71, 80 [1988], lv denied 73 NY2d 855 [1988]). In itstotality, the challenged conduct did not evidence a "flagrant and pervasive pattern ofprosecutorial misconduct" that deprived defendant of a fair trial (People v Chancey, 127 AD3d1409, 1412 [2015] [internal quotation marks and citations omitted], lvdenied 25 NY3d 1199 [2015]), and County Court diligently provided appropriatelimiting instructions, minimizing any possible prejudice to defendant (see People vArce, 42 NY2d 179, 187 [1977]; People v Delaney, 42 AD3d 820, 822 [2007], lvdenied 9 NY3d 922 [2007]; People v McCombs, 18 AD3d 888, 890 [2005]).
Next, defendant was properly sentenced as a second violent felony offender. PenalLaw § 70.02 enumerates those crimes that constitute violent felony offensesfor purposes of determining whether a defendant is a second violent felony offenderpursuant to Penal Law § 70.04. Prior to sentencing, defendant admitted tohaving been convicted of, among other things, criminal possession of a weapon in thethird degree in 1999 under Penal Law § 265.02 (former [4]). At the time ofhis conviction, criminal possession of a weapon in the third degree was enumerated as aviolent felony offense under Penal Law § 70.02 (see Penal Law§ 70.02 [1] [former (c)]). That crime was subsequently recodified ascriminal possession of a weapon in the second degree under Penal Law§ 265.03 (see L 2006, ch 742, as amended; People v Jones, 22 NY3d53, 58 [2013]), and this section is now referenced in Penal Law§ 70.02. Thus, given that criminal possession of a weapon in the thirddegree constituted a violent felony under Penal Law § 70.02 at the time ofdefendant's conviction and, in fact, the conduct that constituted that crime is stillclassified as a violent felony, we find that County Court properly accepted the convictionfor purposes of sentencing defendant as a second violent felony offender (see People v Thomas, 122AD3d 489, 489 [2014], lv denied 24 NY3d 1123 [2015]; People v Bowens, 120 AD3d1148, 1149 [2014], lv denied 25 NY3d 949 [2015]; see also People vWalker, 81 NY2d 661, 665 [1993]).
[*5] Defendant's remaining contentions do not require extended discussion. CountyCourt did not err in admitting a recording of a telephone call made by defendant from thecorrectional facility where he was incarcerated prior to trial; the People laid a properfoundation for the admission of the recording by providing evidence of the recording'sauthenticity and the identity of the speaker (see People v Lancaster, 121 AD3d 1301, 1304 [2014],lv denied 24 NY3d 1121 [2015]; People v Vanhoesen, 31 AD3d 805, 807 [2006]). Finally,defendant was not denied the effective assistance of counsel. The record beliesdefendant's claim that his counsel was unaware of his previous trial. Defense counselprovided "meaningful representation" (People v Baldi, 54 NY2d 137, 147[1981]) by, among other things, making appropriate pretrial and trial motions, renderingtimely and appropriate objections and presenting a cogent opening statement andsummation (see People vRamos, 133 AD3d 904, 909 [2015], lv denied 26 NY3d 1149 [2016]; People v Hammond, 107 AD3d1156, 1156 [2013]).
Peters, P.J., Rose, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.