| People v Worthington |
| 2017 NY Slip Op 03806 [150 AD3d 1399] |
| May 11, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JeremyWorthington, Appellant. |
G. Scott Walling, Schenectady, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered April 4, 2014, upon a verdict convicting defendant of the crime of criminal possessionof a weapon in the second degree (two counts).
Defendant was indicted on two counts of criminal possession of a weapon in the seconddegree following the seizure of two unloaded firearms from his automobile during a traffic stop.After a jury trial, he was convicted as charged. Prior to sentencing, defendant moved to set asidethe verdict pursuant to CPL 330.30 (2) after discovering that there were handwritten notations onthe back of a jury note pertaining to a previous weapons case. County Court denied the motionwithout a hearing and sentenced defendant to 3
We turn first to the challenged jury note, on which the jury foreperson informed CountyCourt that the jury had "reached an agreement." The back of the note included handwrittencomments apparently by a juror deliberating in a previous, unrelated weapons case. The People[*2]concede that the form had been recycled from a previouscase.[FN2] Defendantmaintains that he was denied a fair trial because the jury had access to written materials, i.e., thenotations on the back of the jury note, that were not expressly allowed under CPL310.20—a violation that mandates a new trial. We are not persuaded.
Absent consent by the parties, CPL 310.20 expressly limits the materials that may beprovided to a jury during deliberations to include any exhibits received in evidence, an annotatedverdict sheet and, when requested, a written witness list. The Court of Appeals has held "that it isreversible error, not subject to harmless error analysis, to provide a jury in a criminal case with averdict sheet that contains annotations not authorized by CPL 310.20 (2)" (People v Miller, 18 NY3d 704,706 [2012]; see People v Damiano, 87 NY2d 477, 484-485 [1996]; People vSpivey, 81 NY2d 356, 361-362 [1993]). The basic principle is that "[n]othing of substancecan be included that the statute does not authorize" (People v Miller, 18 NY3d at 706).The handwritten notations consist of short phrases and include comments about a gun, DNA anda pill bottle. In our view, the notations at issue do not constitute the type of materials orsubstantive instructions that trigger a strict application of CPL 310.20, particularly because thereis nothing to show that either County Court or the People knew that the recycled note paper hadbeen provided to the jury. Nor is there any indication that the jury was even aware of thenotations.
Next, defendant maintains that the verdict is against the weight of the evidence since theevidence failed to establish that he knew the two guns were in his vehicle. Where, as here, adifferent verdict would not have been unreasonable, we "weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marksand citation omitted]). "As relevant here, a person is guilty of criminal possession of a weapon inthe second degree when he or she knowingly possesses any loaded firearm outside of his or herhome or place of business" (People vScippio, 144 AD3d 1184, 1185 [2016], lv denied 28 NY3d 1150 [2017], citingPenal Law § 265.03 [3]; see Penal Law § 15.00 [2]; Peoplev Saunders, 85 NY2d 339, 341-342 [1995]). The weapon must be operable—which isnot at issue here—and a "[l]oaded firearm" includes "any firearm which is possessed byone who, at the same time, possesses a quantity of ammunition which may be used to dischargesuch firearm" (Penal Law § 265.00 [15]). Possession may be actual or constructive(see Penal Law § 10.00 [8]). Constructive possession occurs where "adefendant exercised dominion and control over the place where [the weapon] was seized"(People v Manini, 79 NY2d 561, 572-573 [1992]; see People v Victor, 139 AD3d 1102, 1105 [2016], lvdenied 28 NY3d 1076 [2016]). During a [*3]search of thevehicle, Richard Matthews, a Deputy Sheriff, found an unloaded Ruger semiautomatic pistol inthe back pocket of the front passenger seat, as well as .22 caliber ammunition on the rear driver'sside floor, around the driver's seat and in a small area next to the steering wheel. At that point,defendant advised Matthews that he recognized the gun, explained that there may also be asecond weapon and that both must have been placed in the vehicle by his friend, GlenWoleslagle, the day before. Matthews then found a Taurus .22 caliber revolver located in theback pocket of the driver's seat. Matthews also located a locked safe in the trunk. After defendantprovided the combination, Matthews found a sight for a weapon compatible with the Ruger.
Both defendant and Woleslagle testified that the two had gone fishing the day before thearrest at a family member's cabin. Woleslagle testified that he borrowed the two guns from afriend, and defendant acknowledged that they used the guns for target shooting. Woleslagletestified that, later that evening, unbeknownst to defendant, he put the guns in the seat pockets.They then returned to defendant's house where Woleslagle's girlfriend picked him up because hewas intoxicated. The next morning, Woleslagle realized that the guns were left behind and tried,unsuccessfully, to reach defendant by phone in order to retrieve the weapons. For his part,defendant testified that he was unaware that Woleslagle had placed the guns back in the car. Heexplained that he had forgotten about the sight, which he intended to put on his son's crossbow.Relatedly, Matthews acknowledged that the Ruger had a common mounting system. Defendantalso explained that he recovered loose rounds of ammunition on the ground and dropped them onthe floor of his car or "the center console or little cubbyhole." He pointed out that the shells werecorroded and may have been left outside by his children. Matthews noted that some of theammunition was in fact corroded. While Woleslagle also testified that he put leftoverammunition on the floor or in the back seat pockets, he did not place any ammunition near thesteering wheel.
Notably, the jury was not charged as to the automobile presumption (see Penal Law§ 265.15 [3]), but was presented with a case based on constructivepossession—the key issue being whether defendant knew the guns were in his car. Whiledefendant and Woleslagle explained a scenario that defendant did not realize that the weaponswere still in his car when the traffic stop occurred, the jury's implicit finding that such testimonywas not credible is entitled to deference and was not against the weight of the evidence (see People v Carter, 60 AD3d1103, 1107 [2009], lv denied 12 NY3d 924 [2009]; cf. People v Verez, 83NY2d 921, 924 [1994]; People vWaters, 30 AD3d 681, 682 [2006], lv denied 7 NY3d 796 [2006]).
Finally, defendant maintains that he was deprived of the effective assistance of counsel,focusing on counsel's failure to move to suppress the evidence obtained during the search of hisvehicle. A defendant's constitutional right to effective representation is met "[s]o long as theevidence, the law, and the circumstances of a particular case, viewed in totality and as of the timeof the representation, reveal that the attorney provided meaningful representation" (People vBaldi, 54 NY2d 137, 147 [1981]). The failure to request a suppression hearing does notnecessarily constitute ineffective representation, but there are rare exceptions "where a defendantshows the absence of a strategic or legitimate explanation in counsel's strategy not to pursue asuppression motion" (People v Zeh,144 AD3d 1395, 1396 [2016]).
Defendant maintains that the length of the detention following the traffic stop was unjustifiedand that his eventual consent to the search of his vehicle was tainted by his unlawful detention.On this theory, defendant maintains that a suppression motion would have been successful, andthe weapons suppressed—necessitating dismissal of the indictment. We disagree. Werecognize that "[a] traffic stop constitutes a limited seizure of the person . . . [and,][*4]to pass constitutional muster, the officer's action in stoppingthe vehicle must be justified at its inception and the seizure must be reasonably related in scope,including its length, to the circumstances which justified the detention in the first instance"(People v Banks, 85 NY2d 558, 562 [1995] [citation omitted], cert denied 516 US868 [1995]).
Matthews testified that he initiated the routine traffic stop after observing an obstruction indefendant's windshield, later determined to be a mountable cell phone holder. Defendant wasdriving and there was a female in the front passenger seat, with two dogs in the back. Uponrequest, defendant gave Matthews an insurance card and a registration for the vehicle, which hada Pennsylvania license plate, but was unable to produce a driver's license or other form ofidentification. The insurance and registration documents matched the vehicle. Defendant didproduce a traffic citation issued the day before in New York that provided his name, date of birthand driver's license number. Upon further inquiry, defendant explained that he was returninghome to Pennsylvania, but was unable to provide the passenger's name or address, and he gaveconflicting stories about losing one of the dogs and where he stayed the night before. Matthewsasked defendant to step out of the car and, upon further questioning, defendant informed him thatthe passenger's first name was Miranda, that they had just met and that "she was just going withhim down to Pennsylvania." At Matthews' request, defendant emptied his pockets and consentedto a search of his vehicle. After the passenger stepped out of the vehicle, Matthews found a pipetypically used to smoke narcotics in the area where she had been sitting. The search continuedand he recovered the weapons.
While the predicate for the initial stop—which defendant does not challenge in hisbrief—would warrant only a limited detention, defendant's failure to produce a license orother form of identification and his inability to identify his passenger, coupled with aninconsistent explanation as to his activities, provided a reasonable suspicion of criminality thatjustified Matthews' continued questioning up to the point when defendant consented to the searchof his vehicle (see People v Banks,148 AD3d 1359, 1362 [2017]; People v Carter, 60 AD3d at 1104-1105). As such, itis our view that a suppression motion would not have been successful—an outcome thatundermines defendant's ineffective assistance argument (see People v Caban, 5 NY3d 143, 152 [2005]). We also note thePeople's observation that, early in the case, defendant failed to appear and a warrant was issuedfor his arrest. After being incarcerated in Pennsylvania for several months, defendant returned toNew York. Thereafter, defendant waived a Huntley hearing in the hopes of keeping opena beneficial plea offer—a strategy that may have contributed to counsel's failure to requesta Mapp hearing. Based on the totality of the record, in which counsel mounted aconsistent, cogent defense that defendant was not aware that the weapons were in the vehicle, wefind that defendant received meaningful representation.
McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:The original sentence onlyincluded a two-year period of postrelease supervision but was subsequently modified to complywith the legal minimum for a class C felony conviction (see Penal Law§§ 70.02 [1] [b]; 70.45 [2] [f]).
Footnote 2:County Court acknowledgedreceiving the note on the record and proceeded to directly take a verdict, without commenting onthe written notations. In his affirmation supporting the motion for a new trial, defendant's counselcommented that the court observed different handwriting on both sides of the note, and thatcounsel were allowed to examine the note after the jury delivered its verdict. The court deniedthe motion on the record, observing that it was the first to notice the handwriting on the back ofthe note and, after looking into the matter, determined that the notations pertained to a trial twoweeks earlier. From this record, we are unable to discern whether the court observed thenotations or counsel was informed about the note discrepancy prior to the jury rendering itsverdict and being discharged.