| People v Lawrence |
| 2016 NY Slip Op 05251 [141 AD3d 1079] |
| July 1, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEugene Lawrence, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Michael J. Hillery ofcounsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges,J.), rendered February 28, 2014. The judgment convicted defendant, upon a jury verdict,of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the order of protection in favor of defendant's wife and as modifiedthe judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant contends that Supreme Court erred in refusing to suppress a gundiscovered by a police officer during a search of the residence he shared with his wife.Defendant sought suppression of the gun on the ground that he did not voluntarilyconsent to the search. Contrary to defendant's contention, we conclude that "the court didnot err in determining, based upon the totality of the circumstances, that [defendant]voluntarily consented to the search of his residence" (People v May, 100 AD3d 1411, 1412 [2012], lv denied20 NY3d 1063 [2013]). Here, the testimony of the police officer at the suppressionhearing established that defendant was not in custody when he consented to the search,that the officer did not employ threats or other coercive techniques, and that defendantwas calm and compliant throughout the interaction (see People v Caldwell, 221AD2d 972, 972-973 [1995], lv denied 87 NY2d 920 [1996]). "The testimony ofdefendant[ ] . . . at the suppression hearing that [he] did not voluntarilyconsent to the search raised an issue of credibility that the court was entitled to resolveagainst defendant" (People vMills, 137 AD3d 1690, 1691 [2016]; see People v Harris, 132 AD3d 1281, 1283 [2015], lvdenied 26 NY3d 1109 [2016]). In light of our determination that defendantvoluntarily consented to the search, we reject his further contention that his statements tothe police must be suppressed as fruit of the poisonous tree (see People v Nichols, 113AD3d 1122, 1123 [2014], lv denied 23 NY3d 1065 [2014]).
Defendant failed to preserve for our review his contention that he was denied a fairtrial based on the allegedly improper inquiry by the prosecutor during jury selectionregarding the prospective jurors' perception of a victim recanting a prior allegation madeagainst a loved one (see CPL 470.05 [2]), and we decline to exercise our powerto review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). To the extent that any of the prosecutor's other remarks "couldhave been understood by prospective jurors as instructions on the law, any resultingprejudice was eliminated by the prosecutor's statement[s] that the trial court wouldinstruct them later, and by the trial court's instructions to the jury" (People vAlvarez, 304 AD2d 313, 313 [2003], lv denied 100 NY2d 578 [2003]; see People v Din, 62 AD3d1023, 1024 [2009], lv denied 13 NY3d 795 [2009]).
Defendant further contends that reversal of the judgment is required because thecourt erred in permitting the People to present evidence of a prior bad act, i.e., a witness'stestimony [*2]that she had seen defendant in possessionof the subject gun two years prior to the instant crime. We reject that contention. To theextent that defendant contends that the People's motion in limine concerning the witness'stestimony was untimely because it was brought just before jury selection on the first dayof trial, we conclude that his contention lacks merit. "[A] defendant is not entitled as amatter of law to pretrial notice of the People's intention to offer evidence pursuant toPeople v Molineux (168 NY 264 [1901]) or to a pretrial hearing on theadmissibility of such evidence" (People v Small, 12 NY3d 732, 733 [2009]; seegenerally People v Ventimiglia, 52 NY2d 350, 362 [1981]; People v Holmes, 104 AD3d1288, 1289-1290 [2013], lv denied 22 NY3d 1041 [2013]). Nonetheless, theCourt of Appeals "outlined in . . . Ventimiglia a procedure to befollowed in order to avoid unfairness to the defendant," whereby "a prosecutor seeking tointroduce Molineux evidence 'should ask for a ruling out of the presence of thejury' . . . , and . . . any hearing with respect to the admissibilityof such evidence should occur either before trial or, at the latest, 'just before the witnesstestifies' " (Small, 12 NY3d at 733). The Court of Appeals emphasizedthat "there is no requirement that such inquiry or ruling occur before trial commences"(id.). Here, when the court initially reserved decision on the People's motion withrespect to the witness's testimony regarding defendant's past possession of the gun, itruled, in effect, that the People would not be allowed to introduce such evidence of aprior bad act or uncharged crime as part of their case-in-chief unless defendant openedthe door to such testimony by denying knowledge and/or possession of the gun (seegenerally People v Ortiz, 259 AD2d 979, 980 [1999], lv denied 93 NY2d1024 [1999]). Although the prosecutor improperly referenced the witness's proposedtestimony during her opening statement, defense counsel did not object and, thereafter,opened the door to the witness's testimony by arguing during his opening statement thatdefendant's wife owned the gun and knew its exact location in the residence, and thatdefendant was stunned by the discovery of the gun and had no knowledge of it (see People v Kidd, 112 AD3d994, 995-996 [2013], lv denied 23 NY3d 1039 [2014]; People v Cimino, 49 AD3d1155, 1156 [2008], lv denied 10 NY3d 861 [2008]; see generally Peoplev Rojas, 97 NY2d 32, 34-39 [2001]).
With respect to the admission of the witness's testimony, it is well established that"[e]vidence of . . . prior uncharged crime[s] [or prior bad acts] may not beadmitted solely to demonstrate a defendant's bad character or criminal propensity, butmay be admissible if linked to a specific material issue or fact relating to the crime[s]charged, and if its probative value outweighs its prejudicial [effect]" (People vBlair, 90 NY2d 1003, 1004-1005 [1997]; see Kidd, 112 AD3d at 995). Here,contrary to defendant's contention, the testimony that he had previously possessed thegun and had shown it to the witness in the residence after retrieving it from a safe "wasrelevant and probative of a material element of a crime charged, namely, defendant'sknowing possession of the gun" (Kidd, 112 AD3d at 995; see People v Delarosa, 84AD3d 832, 834 [2011], lv denied 17 NY3d 815 [2011]). "Although the courtarguably could have better 'recited its discretionary balancing of the probity of suchevidence against its potential for prejudice' . . . , we conclude that, viewingthe record in its entirety, the court conducted the requisite balancing test"(Holmes, 104 AD3d at 1290). Contrary to defendant's contention, the courtproperly concluded that the probative value of the witness's testimony outweighed itsprejudicial effect (see Kidd, 112 AD3d at 995). In any event, the court minimizedany prejudicial effect by instructing the jury immediately after the witness's testimonyand during the jury charge that the testimony was to be considered only with respect tothe allegation that defendant knowingly possessed the gun and was not to be consideredas evidence of a propensity to commit the crime charged (see People v Hernandez, 103AD3d 433, 433-434 [2013], lv denied 22 NY3d 1041 [2013];Delarosa, 84 AD3d at 834; see generally Small, 12 NY3d at 733).
We reject defendant's contention that the conviction is not supported by legallysufficient evidence. " 'To meet their burden of proving defendant's constructivepossession of the [gun], the People had to establish that defendant exercised dominion orcontrol over [the gun] by a sufficient level of control over the area in which [it was]found' " (People vDiallo, 137 AD3d 1681, 1682 [2016]; see People v Manini, 79 NY2d561, 573-574 [1992]). Here, the People presented evidence that the police officerdiscovered the stolen, loaded gun in the slightly opened safe located inside a bedroom indefendant's residence, and that the safe also contained ammunition, a holster, and mailaddressed to defendant (seePeople v Diaz, 24 NY3d 1187, 1189-1190 [2015]). The People presentedfurther testimony that defendant used and had authority over the safe in which the gunwas located (see People vOrtiz, 61 AD3d 779, 780 [2009], lv denied 13 NY3d 748 [2009]).Viewing the evidence in the light most favorable to the People, we conclude thatdefendant exercised dominion and control over the gun by a sufficient level of controlover the area in which it was discovered, and thus the evidence is legally sufficient toestablish beyond a reasonable doubt that [*3]defendantconstructively possessed the gun (see id.). In addition, "there was sufficientevidence that defendant's possession of the [gun] was knowing, [inasmuch] as[,]'[g]enerally, possession suffices to permit the inference that the possessor knows what hepossesses, especially, but not exclusively, if it is . . . on hispremises' " (Diaz, 24 NY3d at 1190).
Contrary to defendant's further contention, viewing the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). "Even assuming, arguendo, that adifferent verdict would not have been unreasonable, 'the jury was in the best position toassess the credibility of the witnesses and, on this record, it cannot be said that the juryfailed to give the evidence the weight it should be accorded' " (People v Chelley, 121 AD3d1505, 1506 [2014], lv denied 24 NY3d 1218 [2015], reconsiderationdenied 25 NY3d 1070 [2015]).
We further conclude that, contrary to defendant's contention, the court did not err indenying his motion for a trial order of dismissal at the close of the People's proof on theground that the People failed to comply with CPL 200.60 (3). Defendant waived theprocedural requirements of that statute when he stipulated on the day of the suppressionhearing to the correctness of his prior conviction as enumerated in the specialinformation filed by the People (see People v Ward, 57 AD3d 582, 583 [2008], lvdenied 12 NY3d 789 [2009]; People v Santiago, 244 AD2d 263, 263 [1997],lv denied 91 NY2d 879 [1997]).
Defendant further contends that the court erred in permitting the People to impeachthe trial testimony of defendant's wife with prior inconsistent statements by playing forthe jury an audio recording of a telephone call that she made to the police reporting thatdefendant possessed a gun and had threatened her. Initially, upon our review of therecord, we conclude that effective appellate review of defendant's contention is notprecluded by the fact that the audio recording has been lost (see People v Cruz, 134 AD3d1455, 1456 [2015]; see generally People v Yavru-Sakuk, 98 NY2d 56, 60-61[2002]). Although the court erred in permitting the People to play the audio recordingbecause they failed to lay a proper foundation for it (see People v Ely, 68 NY2d520, 527 [1986]; People v Joyner, 240 AD2d 282, 286-287 [1997], lvdenied 90 NY2d 906 [1997]; People v Concepcion, 175 AD2d 324, 327[1991], lv denied 78 NY2d 1010 [1991]), the court gave a limiting instructionthat minimized any prejudice (see generally People v Barner, 30 AD3d 1091, 1092[2006], lv denied 7 NY3d 809 [2006]), and we conclude that the error is harmlessinasmuch as the proof of defendant's guilt is overwhelming and there is no significantprobability that the jury would have acquitted defendant in the absence of the audiorecording (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Fineout, 139 AD3d1394, 1396 [2016]).
Even assuming, arguendo, that defendant's contentions with respect to the court'sconsideration of certain information in reaching its sentence are preserved for our review,we conclude that they are without merit. "Generally, as a matter of due process, anoffender may not be sentenced on the basis of materially untrue assumptions ormisinformation, and the sentencing court must be assured that the information uponwhich it bases the sentence is reliable and accurate" (People v Crawford, 55 AD3d 1335, 1336 [2008], lvdenied 11 NY3d 896 [2008] [internal quotation marks omitted]; see People vNaranjo, 89 NY2d 1047, 1049 [1997]). Here, the court properly relied on defendant'scriminal history as contained in the presentence investigation report and the additionalinformation in the People's sentencing memorandum documenting those same crimes (see People v Weinsheimer, 68AD3d 901, 902 [2009], lv denied 14 NY3d 807 [2010]). To the extent thatdefendant contends that the People's sentencing memorandum was untimely (seeCPL 390.40 [2]), we note that he raised no such objection at sentencing and that hehas therefore failed to preserve that contention for our review (see People v DeTorres, 96 AD2d 609, 609-610 [1983]). Contrary to his further contention," '[t]he court did not base its sentence on a crime of which defendant had beenacquitted . . . , but rather sentenced him based on all the relevant facts andcircumstances surrounding the crime of which he was convicted' . . . , as itwas required to do" (People vLipford, 129 AD3d 1528, 1531 [2015], lv denied 26 NY3d 1041 [2015];cf. People v Flowers, 97AD3d 693, 693 [2012], lv denied 19 NY3d 1102 [2012]). We rejectdefendant's contention that the sentence is unduly harsh and severe.
We agree with defendant, however, that the court erred in granting an order ofprotection in favor of his wife inasmuch as defendant, having previously been convictedof a crime, was found guilty of possessing a loaded firearm in his home (Penal Law§ 265.03 [3]; see § 265.02[*4][1]), which is not a "crime or violation between spouses,between a parent and child, or between members of the same family or household" (CPL530.12 [5]; see People v Petrusch, 306 AD2d 889, 890 [2003]). We thereforemodify the judgment accordingly. Present—Centra, J.P., Peradotto, Lindley,DeJoseph and NeMoyer, JJ.