| People v Roach |
| 2017 NY Slip Op 00872 [147 AD3d 1423] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v MatthewRoach, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
Matthew Roach, defendant-appellant pro se.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered September 20, 2013. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the third degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the third degree ([CPW] Penal Law § 265.02[1]) and resisting arrest (§ 205.30). Defendant is convicted of possessing a macheteduring a dispute with a man in defendant's apartment. When the police arrived in response to theman's 911 call, they met the man outside and proceeded to defendant's apartment. Defendantrefused to open the door in response to their knock and announcement as police officers, and thepolice entered the apartment after hearing a male voice making threats and a female voice sayingwords to the effect of "stop it, put it down." After defendant refused to comply with policedirectives to show his hands, the police used force to effect his arrest.
We reject defendant's contention in his main and pro se supplemental briefs that SupremeCourt erred in denying that part of his motion to dismiss the indictment with respect to the countcharging CPW on the ground that the grand jury proceedings were defective because theprosecutor failed to instruct the grand jury on the defense of justification (see Penal Law§ 35.15). Although defendant testified before the grand jury that he possessed themachete to protect himself and his girlfriend from the man at defendant's apartment, who had aboard with nails in it, it is well established that, "[b]ecause the possession of a weapon is distinctfrom the use of such weapon, 'there are no circumstances when justification . . . canbe a defense to the crime of criminal possession of a weapon' " (People v Cohens, 81 AD3d 1442,1444 [2011], lv denied 16 NY3d 894 [2011], quoting People v Pons, 68 NY2d264, 267 [1986]; see People vTaylor, 140 AD3d 1738, 1740 [2016]). Defendant failed to make a pretrial motion todismiss the count of the indictment charging him with resisting arrest on the ground that theprosecutor failed to instruct the grand jury on the defense of justification, and thus his challengeto that count of the indictment is not preserved for our review (see People v Fisher, 101 AD3d1786, 1786 [2012], lv denied 20 NY3d 1098 [2013]). In any event, that contention iswithout merit (see generally § 35.27).
We reject defendant's contention in his main brief that the verdict is against the weight of theevidence based upon the lack of credibility of the victim with respect to the conviction of CPWand the lack of credibility of the police witnesses with respect to the conviction of resistingarrest. Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although a verdict of notguilty of CPW would not have been unreasonable (see generally id.), we neverthelessdecline to disturb the credibility determinations of the jury (see People v Medley, 132 AD3d 1255, 1255 [2015], lvdenied 26 NY3d 1110 [2016], reconsideration denied 27 NY3d 967 [2016]; seegenerally Bleakley, 69 NY2d at 495). We likewise decline to disturb the jury's credibilitydetermination regarding the police witnesses (see Medley, 132 AD3d at 1255).
We reject defendant's further contention in his main brief that he was denied a fair trial andthe right to confront witnesses by the court's determination that an adjudication of the CitizensReview Board (CRB) with respect to the police action in effecting defendant's arrest was notadmissible. It is well settled that "[o]ut-of-court statements offered for the truth of the mattersthey assert are hearsay and may be received in evidence only if they fall within one of therecognized exceptions to the hearsay rule, and then only if the proponent demonstrates that theevidence is reliable" (People vMeadow, 140 AD3d 1596, 1598 [2016], lv denied 28 NY3d 933 [2016],reconsideration denied 28 NY3d 972 [2016] [internal quotation marks omitted]). Here,the determination of the CRB did not fall within any of the recognized exceptions to the hearsayrule. Although defendant asserted that he wanted to use the determination to establish that thepolice witnesses had a reason to fabricate their trial testimony, "[t]he right to present a defensedoes not give criminal defendants carte blanche to circumvent the rules of evidence. . . The courts therefore have the discretion to exclude evidence sought to beintroduced by a defendant where such evidence is irrelevant or constitutes hearsay, and itsprobative value is outweighed by the dangers of speculation, confusion, and prejudice" (People v Williams, 94 AD3d 1555,1556 [2012] [internal quotation marks omitted]). We note that defendant cross-examined theofficers with respect to their knowledge that a complaint with the CRB had been lodged againstthem.
Defendant failed to preserve for our review his contention in his main brief that the courterred in its charge to the jury on resisting arrest because the court should not have instructed thejury regarding Penal Law § 35.27 (see People v Spillman, 57 AD3d 580, 581 [2008], lv denied12 NY3d 788 [2009], cert denied 558 US 1013 [2009]). In any event, that contention iswithout merit. Upon our review of the charge as a whole against the background of the evidenceat trial, we conclude that the charge properly conveyed the People's burden of proof with respectto the count of resisting arrest and was not likely to confuse the jury on the issue whetherdefendant could be convicted of resisting arrest if the arrest was unauthorized (see id.; see generally People v Walker, 26NY3d 170, 174-175 [2015]). Defendant also failed to preserve for our review his contentionin his main brief that the court erred in failing to instruct the jury that it must determine whetherthe machete was a dangerous knife before it applied the statutory presumption that "possessionby any person of any . . . dangerous knife . . . is presumptive evidenceof intent to use the same unlawfully against another" (§ 265.15 [4]). Nevertheless,that contention also is without merit inasmuch as there is ample evidence that defendantpossessed the machete as a weapon (seegenerally Matter of Antwaine T., 23 NY3d 512, 516-517 [2014]), which providedsupport for the court's instruction that the machete was a "dangerous instrument" (see generally People v Campos, 93AD3d 581, 582 [2012], lv denied 19 NY3d 971 [2012]).
We have reviewed the remaining contentions in defendant's pro se supplemental brief andconclude that none requires reversal or modification of the judgment. Present—Centra,J.P., Peradotto, Lindley, NeMoyer and Scudder, JJ.