| People v Williams |
| 2017 NY Slip Op 04984 [151 AD3d 1834] |
| June 16, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v RomeoWilliams, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered July23, 2014. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the second degree.
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 second degree (Penal Law § 265.03 [3]).Defendant contends that the evidence is not legally sufficient to support the conviction inasmuchas the People failed to establish that the firearm at issue was operable. We reject that contention.The People presented testimony establishing that defendant was observed carrying "somethingblack," which appeared to be a gun, immediately before two witnesses heard several gunshotsemanating from his direction (seePeople v Spears, 125 AD3d 1401, 1402 [2015], lv denied 25 NY3d 1172 [2015];People v Jackson, 122 AD3d1310, 1311 [2014], lv denied 24 NY3d 1220 [2015]; People v Samba, 97 AD3d 411,414 [2012], lv denied 20 NY3d 1065 [2013]). Defendant was later observed throwing arevolver from a moving vehicle, and that revolver was recovered by the police. The firearmsexaminer testified that damage to the loading and unloading mechanism did not affect theoperability of the revolver (see People v Cavines, 70 NY2d 882, 883 [1987]; People v Hailey, 128 AD3d 1415,1416 [2015], lv denied 26 NY3d 929 [2015]), and he further testified that he successfullytest-fired the revolver without damaging, repairing, or otherwise materially altering the weapon'sfiring apparatus (cf. People v Shaffer, 66 NY2d 663, 664 [1985]; see generally People v Brown, 107AD3d 1477, 1478 [2013], lv denied 21 NY3d 1040 [2013]; People v Francis,126 AD2d 740, 740 [1987]). We therefore conclude that defendant's conviction is supported bylegally sufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987])and, viewing the evidence in light of the elements of the crime 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 Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that County Court erred in suasponte taking judicial notice of the dismissal of the criminal charges against the two otheroccupants of the vehicle in which defendant was a passenger at the time of his arrest (see People v Strauts, 26 AD3d796, 796 [2006], lv denied 6 NY3d 839 [2006]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Defendant also failed to preserve for our review his contention that hewas deprived of a fair trial based on prosecutorial misconduct (see People v Love, 134 AD3d1569, 1570 [2015], lv denied 27 NY3d 967 [2016]), and we conclude thatdefendant's contention is without merit in any event. Likewise, defendant failed to preserve forour review his contention that the court abused its discretion in reopening the suppressionhearing to clarify a witness's testimony before rendering its decision (see generally People v Valentin, 132AD3d 499, 500 [2015], affd 29 NY3d 150 [2017]). In any event, we reject thatcontention (see People v Suphal, 7AD3d 547, 547 [2004], lv denied 3 NY3d 682 [2004]; People v Tirado, 266AD2d 130, 130 [1999], lv denied 94 NY2d 867 [1999]; see also Matter of State of New [*2]York v Stein, 85 AD3d 1646, 1647 [2011], affd 20NY3d 99 [2012], cert denied 568 US 1216 [2013]).
We also reject defendant's contention that he was deprived of his right to effective assistanceof counsel based on defense counsel's failure to object to those three alleged errors. "Defendant,of course, bears the burden of establishing his claim that counsel's performance isconstitutionally deficient" (People vNicholson, 26 NY3d 813, 831 [2016]). To meet that burden, "[i]t is incumbent ondefendant to demonstrate the absence of strategic or other legitimate explanations for counsel'salleged failures" (People v Jarvis,113 AD3d 1058, 1059 [2014], affd 25 NY3d 968 [2015] [internal quotation marksomitted]; see People v Benevento, 91 NY2d 708, 712 [1998]). "[A] reviewing court mustbe careful not to second-guess counsel, or assess counsel's performance with the clarity ofhindsight, effectively substituting its own judgment of the best approach to a given case" (People v Conway, 148 AD3d1739, 1741-1742 [2017] [internal quotation marks omitted]; see People v Pavone, 26 NY3d629, 647 [2015]). Here, we conclude that "defendant failed 'to demonstrate the absence ofstrategic or other legitimate explanations for [defense] counsel's alleged shortcomings' "(People v Elliott, 73 AD3d1444, 1445 [2010], lv denied 15 NY3d 773 [2010], quoting Benevento, 91NY2d at 712).
Finally, the sentence is not unduly harsh or severe. Present—Centra, J.P., Peradotto,NeMoyer and Curran, JJ.