| People v Watkins |
| 2017 NY Slip Op 05342 [151 AD3d 1913] |
| June 30, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Samuel J.Watkins, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedJune 20, 2014. The judgment convicted defendant, upon a jury verdict, of criminal possession ofa weapon in the second degree (two counts) and criminal possession of marihuana in the thirddegree.
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, oftwo counts of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [1] [b]; [3]) and one count of criminal possession of marihuana in the thirddegree (§ 221.20). Defendant contends that Supreme Court should have suppressedtangible evidence, i.e., a firearm and marihuana, that was seized from a parked vehicle occupiedby defendant and an acquaintance on the ground that the police conducted an unlawful seizure byblocking the vehicle without the requisite reasonable suspicion of criminal behavior. Defendant'scontention is not preserved for our review inasmuch as he failed to raise that specific contentionin his motion papers or at the suppression hearing as a ground for suppressing the tangibleevidence (see People v Witt, 129AD3d 1449, 1449 [2015], lv denied 26 NY3d 937 [2015]), nor did the courtexpressly decide the question raised on appeal (see CPL 470.05 [2]; People v Graham, 25 NY3d 994,997 [2015]; People v Turriago, 90 NY2d 77, 83-84 [1997], rearg denied 90 NY2d936 [1997]). We decline to exercise our power to review that contention as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]).
Defendant further contends that defense counsel was ineffective for failing to seeksuppression of the tangible evidence on the ground that the ostensible blocking of the vehicleconstituted a seizure requiring reasonable suspicion. We reject that contention. It is wellestablished that "a showing that [defense] counsel failed to make a particular pretrial motiongenerally does not, by itself, establish ineffective assistance of counsel" (People v Rivera,71 NY2d 705, 709 [1988]). "To prevail on his claim, defendant must demonstrate the absence ofstrategic or other legitimate explanations for counsel's failure to pursue colorable claims," and"[o]nly in the rare case will it be possible, based on the trial record alone, to deem counselineffective for failure to pursue a suppression motion" (People v Carver, 27 NY3d 418, 420 [2016] [internal quotationmarks omitted]; see Rivera, 71 NY2d at 709). Here, defendant failed to demonstrate theabsence of legitimate explanations for defense counsel's decision not to pursue suppression onthe ground advanced by defendant on appeal (see generally Rivera, 71 NY2d at 709). Wehave reviewed defendant's remaining claims of ineffective assistance of defense counsel duringtrial and conclude that they lack merit (see generally Carver, 27 NY3d at 422; Peoplev Baldi, 54 NY2d 137, 147 [1981]).
We reject defendant's contention that the verdict is against the weight of the evidence withrespect to the two counts of criminal possession of a weapon in the second degree. Viewing theevidence presented at trial in light of the elements of the crimes as charged to the jury (see [*2]People v Danielson, 9 NY3d 342, 349 [2007]; see generally People v Santiago, 134AD3d 472, 473 [2015], lv denied 27 NY3d 1006 [2016]), we conclude that, althougha different result would not have been unreasonable, the jury did not fail to give the evidence theweight it should be accorded (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Contrary to defendant's contention, " 'the verdict, based on the applicability ofthe automobile presumption . . . , is not against the weight of the evidence' "(People v Smith, 134 AD3d1568, 1569 [2015]; see People vBlocker, 132 AD3d 1287, 1288 [2015], lv denied 27 NY3d 992 [2016]). Inaddition, given that defendant was the driver of the vehicle, was sufficiently close to hisacquaintance and the firearm to exercise joint dominion and control over the firearm, and wasfound in possession of a valuable quantity of marihuana, the jury was also entitled to finddefendant guilty pursuant to a theory of constructive possession on the basis that he jointlypossessed the firearm with his acquaintance as part of the same criminal operation (see People v Dunbar, 129 AD3d419, 419-420 [2015], lv denied 26 NY3d 1008 [2015]; People v Caba, 23 AD3d 291, 292[2005], lv denied 6 NY3d 810 [2006]).
Although defendant failed to preserve for our review his further contention that the evidenceis not legally sufficient to support the conviction because the People failed to adduce adequateevidence at trial that the firearm at issue was loaded with live ammunition, " 'wenecessarily review the evidence adduced as to each of the elements of the crimes in the context ofour review of defendant's challenge regarding the weight of the evidence' " (People v Stepney, 93 AD3d 1297,1298 [2012], lv denied 19 NY3d 968 [2012]; see Danielson, 9 NY3d at 349-350).Contrary to defendant's contention, we conclude that the jury was entitled to find from thecredible evidence, including the testimony of the firearm examiner who test-fired the ammunitionsubmitted with the subject firearm, that defendant possessed an operable firearm loaded with liveammunition (see Penal Law § 265.00 [15]; cf. People v Grice, 84 AD3d 1419,1420 [2011], lv denied 17 NY3d 806 [2011]; People v Johnson, 56 AD3d 1191, 1192 [2008]).
To the extent that defendant contends that the court erred in charging the jury with othertheories of possession because the evidence did not support such charges, he failed to preservethat contention for our review (see CPL 470.05 [2]; People v Kendricks, 23 AD3d 1119, 1119 [2005]), and we declineto exercise our power to review it as a matter of discretion in the interest of justice (seeCPL 470.15 [6] [a]). Present—Peradotto, J.P., Carni, Lindley, Troutman and Scudder,JJ.