| People v Cherry |
| 2017 NY Slip Op 03077 [149 AD3d 1346] |
| April 20, 2017 |
| Appellate Division, Third Department |
[*1](April 20, 2017)
| The People of the State of New York, Respondent, v Norman D.Cherry, Appellant. |
Terrence M. Kelly, Albany, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered April 28, 2014, upon a verdict convicting defendant of the crime of criminal possessionof a weapon in the second degree.
Defendant was in bed just before dawn when police officers executing a search warrantentered his apartment and discovered a loaded .22 caliber revolver under the pillow where he hadbeen lying. He was charged by indictment with criminal possession of a weapon in the seconddegree and, following a jury trial, he was convicted as charged. Defendant was sentenced, as asecond felony offender, to a prison term of 12 years, with five years of postrelease supervision,and he now appeals.
Although defendant initially contends that the indictment was obtained in violation of hisstatutory right to testify before the grand jury, this argument was waived "since he did not moveto dismiss the indictment upon such ground within five days of arraignment [upon theindictment] as required by [CPL 190.50 (5) (c)]" (People v Yontz, 116 AD3d 1242, 1244 [2014], lv denied 23NY3d 1026 [2014]; see People vWelden, 140 AD3d 1406, 1406 [2016], lv denied 28 NY3d 938 [2016]). Nor arewe persuaded that the failure of counsel to make such a motion constituted less than meaningfulrepresentation inasmuch as defendant has not established "an absence of strategic or legitimatereasons for counsel's failure to pursue this course of action" (People v Wright, 5 AD3d 873, 874-875 [2004], lv denied 3NY3d 651 [2004]).
Defendant next contends that his conviction is not supported by legally sufficient [*2]evidence and is against the weight of the evidence because thePeople failed to prove that he constructively possessed the revolver. While the legal sufficiencyargument is unpreserved for our review (see People v Brown, 139 AD3d 1178, 1178 [2016]; People v Peterkin, 135 AD3d1192, 1192 [2016]), "[n]evertheless, we must, as part of our weight of the evidence review,evaluate whether the elements of [the] crime were proven beyond a reasonable doubt" (People v Collier, 146 AD3d 1146,1147-1148 [2017]; see People vMontford, 145 AD3d 1344, 1345 [2016]). As relevant here, "[c]onstructive possessioncan be demonstrated where there is evidence—either direct or circumstantial—that[the] defendant exercised dominion and control over the weapon or the area in which it wasfound" (People v Butler, 126 AD3d1122, 1123 [2015] [internal quotation marks and citation omitted], lv denied 25NY3d 1199 [2015]; accord People vGraham, 138 AD3d 1242, 1242 [2016], lv denied 28 NY3d 930 [2016]; People v Oliver, 135 AD3d 1188,1190 [2016], lv denied 27 NY3d 1003 [2016]). Further, constructive possession "may befound even though others have access to the contraband or the area where it is located" (People v Perry, 116 AD3d 1253,1254 [2014]; accord People v Graham, 138 AD3d at 1243; People v Rodwell, 122 AD3d1065, 1067 [2014], lv denied 25 NY3d 1170 [2015]).
The trial evidence established that police officers executing the search warrant breached awindow that opened into a bedroom in defendant's apartment where defendant and a female wereobserved lying on a bed. A search of the bedroom produced, among other things, the loadedrevolver underneath the pillow on the right side of the bed where defendant had been lying.While a different verdict would not have been unreasonable (see generally People v Danielson, 9 NY3d 342, 348 [2007]), we aresatisfied that the evidence, when viewed in a neutral light and after deferring to the jury'scredibility determinations (see generallyPeople v Poulos, 144 AD3d 1389, 1390-1391 [2016]), established defendant'sconstructive possession of the revolver and, thus, the verdict is in accord with the weight of theevidence (see People v Perry, 116 AD3d at 1255; People v Dawson, 110 AD3d 1350, 1352-1353 [2013], lvdenied 23 NY3d 1035 [2014]).
We are similarly unpersuaded by defendant's contention that County Court erred in denyinghis motion to suppress the revolver inasmuch as our review of the record confirms that theissuing court had probable cause to believe that drugs and weapons would be found indefendant's apartment. The search warrant application and the testimony from the suppressionhearing, taken together, along with the presumption of validity that is accorded to a searchwarrant that has been judicially approved (see People v Castillo, 80 NY2d 578, 585[1992], cert denied 507 US 1033 [1993]; People v Vanness, 106 AD3d 1265, 1266 [2013], lv denied22 NY3d 1044 [2013]; People vWelch, 2 AD3d 1354, 1357 [2003], lv denied 2 NY3d 747 [2004]), provided"sufficient information to support a reasonable belief that evidence of a crime" would be found indefendant's apartment (People vPasco, 134 AD3d 1257, 1258 [2015]; see People v Williams, 140 AD3d 1526, 1526-1527 [2016], lvdenied 28 NY3d 1076 [2016]). Further, the description of the first floor apartment as thepremises to be searched was sufficiently precise (see People v Carpenter, 51 AD3d 1149, 1150 [2008], lvdenied 11 NY3d 786 [2008]), and defendant's Aguilar-Spinelli claim is unpreservedfor our review (see People v Wolfe,103 AD3d 1031, 1034 [2013], lv denied 21 NY3d 1021 [2013]); in any event, it iswithout merit (see People vCavallaro, 123 AD3d 1221, 1222 [2014]).
Next, we perceive no abuse of discretion in County Court's Sandoval compromise asthe three of six convictions that the People were allowed to inquire about "were neither tooremote in time nor similar to the charged crimes and were probative of defendant's credibility andwillingness to put his interests above those of society" (People v Mould, 143 AD3d 1186, 1188 [2016], lv denied28 NY3d 1187 [2017]; see People vPortis, 129 AD3d 1300, 1303 [2015], lv denied 26 NY3d 1091 [2015]).Defendant's contention that the People improperly [*3]questionedhim about his gang affiliation is unpreserved for our review (see People v Fournier, 137 AD3d 1318, 1321 [2016], lvdenied 28 NY3d 929 [2016]) and, in any event, is without merit inasmuch as it wasdefendant, and not the People, who first raised the issue (see People v Abrams, 73 AD3d 1225, 1228 [2010], affd 17NY3d 760 [2011]). Defendant's assertion that improper remarks by the prosecutor duringsummation deprived him of a fair trial is similarly unpreserved (see People v Rivera, 124 AD3d1070, 1074-1075 [2015], lv denied 26 NY3d 971 [2015]). In any event, while weagree that the remarks at issue were improper, "viewing the summation as a whole, the[prosecutor] did not engage in a pervasive and flagrant pattern of misconduct so as to deprivedefendant of a fair trial" (People v Collier, 146 AD3d at 1151; see People v Nadal, 131 AD3d729, 731 [2015], lv denied 26 NY3d 1041 [2015]).
Finally, in light of defendant's prior criminal history and the fact that his sentence is less thanthe statutory maximum, "we are not persuaded that the sentence imposed was harsh or excessiveor that extraordinary circumstances warrant a reduction in the interest of justice" (People v Lemon, 137 AD3d 1422,1423 [2016], lv denied 27 NY3d 1135 [2016]). Defendant's remaining contentions havebeen considered and determined to be lacking in merit.
Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.