| People v Grierson |
| 2017 NY Slip Op 07344 [154 AD3d 1071] |
| October 19, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v ElvisGrierson, Appellant. |
G. Scott Walling, Slingerlands, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Schenectady County (Sypniewski,J.), rendered March 1, 2016, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the third degree.
In response to a 911 call regarding a domestic dispute between two couples, police officerswere dispatched to a second-floor apartment that defendant and his girlfriend, Tabitha Keating,shared with his sister, Kenesha Grierson, and his sister's boyfriend, Clemento Jones. During thecourse of investigating the dispute, the officers were alerted to the possibility that defendantpossessed a gun. Defendant was thereafter detained and a subsequent search of the apartmentrevealed an unloaded gun that was hidden in a garbage bag on the front porch of the apartment,an area allegedly used only by defendant and Keating. As a result, defendant was charged withcriminal possession of a weapon in the third degree and criminal possession of stolen property inthe fourth degree. Following a jury trial, he was convicted of criminal possession of a weapon inthe third degree, but acquitted of criminal possession of stolen property in the fourth degree. Henow appeals.
Defendant contends that his conviction is not supported by legally sufficient evidence and isagainst the weight of the evidence because the People failed to prove that he constructivelypossessed the gun. We cannot agree. The trial testimony established that defendant and Keatingresided in the front half of the apartment, which consisted of a front bedroom and a small roomthat led to the front porch. It is undisputed that the only way to access the front porch was [*2]through a door located in the small room. Although the proofindicated that both couples spent time on the front porch when they first began residing together,Jones and Grierson unequivocally testified that, after a falling out two months prior to thedomestic dispute, defendant and Keating cut off their access to the front porch. As to the night ofthe domestic dispute, Jones testified that he alerted the officers to the fact that defendant had agun. According to Jones, although he had never seen a gun in the apartment, he knew thatdefendant had one because, within the prior year, defendant had disclosed that he had a gun thatlooked like the type carried by police officers. Grierson also testified that she had a conversationwith defendant around the same time period in which he expressed that he was thinking aboutpurchasing a gun.
There was also evidence that the gun discovered on the front porch was similar to the type ofgun that defendant described to Jones, and DNA retrieved from the gun was consistent withDNA from Keating and at least two additional donors, one of whom was male. Notably, Jonesdenied that he ever came into contact with a gun in the apartment and the only male police officerwho touched the gun at issue testified that he did so while he was wearing protective gloves.Viewing all of this evidence in the light most favorable to the People (see generally People v Ramos, 19NY3d 133, 136 [2012]), we find that a valid line of reasoning and permissible inferencescould lead a rational person to the conclusion reached by the jury that defendant constructivelypossessed the gun (see People vGraham, 138 AD3d 1242, 1243 [2016], lv denied 28 NY3d 930 [2016]; People v McGough, 122 AD3d1164, 1167 [2014], lv denied 24 NY3d 1220 [2015]; People v Rodwell, 122 AD3d1065, 1067 [2014], lv denied 25 NY3d 1170 [2015]). Further, although a differentverdict would not have been unreasonable, upon reviewing the evidence in a neutral light anddeferring to the jury's resolution of credibility issues (see generally People v Criss, 151 AD3d 1275, 1279 [2017]), we aresatisfied that the verdict is in accord with the weight of the evidence (see People v Cherry, 149 AD3d1346, 1347 [2017], lv denied 29 NY3d 1124 [2017]; People v McGough,122 AD3d at 1167; People v Perry,116 AD3d 1253, 1255 [2014]).
Nevertheless, we are persuaded that reversal is warranted as a result of two evidentiaryerrors. During the trial, County Court permitted four police officers to testify as to Jones' andGrierson's statements that gave rise to the search for the gun. It is well settled that "[s]uch[testimony] may be permitted if it is admitted not for its truth but for the narrow purpose ofexplaining an officer's actions and the sequence of events in an investigation" (People v Gregory, 78 AD3d 1246,1246-1247 [2010], lv denied 16 NY3d 831 [2011]; see People v DeCarr, 130 AD3d 1365, 1366 [2015], lvdenied 26 NY3d 1008 [2015]; People v McCottery, 90 AD3d 1323, 1325 [2011], lv denied19 NY3d 975 [2012]; see also People vLudwig, 24 NY3d 221, 231-232 [2014]). Here, although general and cursory testimonyby one of the officers would have sufficed to explain why they began to search for a weapon,County Court permitted all four officers to testify in detail that Jones and Grierson stated thatdefendant had a gun and also allowed the People to elicit further information from two of theofficers as to Jones' and Grierson's description of the gun. In light of the repetitive and detailednature of the testimony, we find that it exceeded the permissible scope of explanatorybackground information (cf. People vDeJesus, 134 AD3d 463, 463-464 [2015]; compare People v Gregory, 78 AD3dat 1247; People v Nieves, 294 AD2d 152, 152-153 [2002], lv denied 98 NY2d700 [2002]).
Compounding this error, County Court improperly allowed the People to impeach Grierson,their own witness, with her prior grand jury testimony. A party may impeach its own witnesswith a prior contradictory statement when the "witness gives testimony upon a material issue orfact which 'tends to disprove the party's position or affirmatively damages theparty's case' " (People v Andujar, 290 AD2d 654, 656 [2002], lv denied98 NY2d 648 [2002], quoting People v Saez, 69 NY2d 802, 804 [1987]; see CPL60.35 [1]; People v Berry, 27 NY3d10, 17[*3][2016]). Although Grierson testified before thegrand jury that she told the police officers about her previous conversation with defendantconcerning a gun and her belief based upon that conversation that defendant might have a gun inthe apartment, at trial she denied that she made those statements to the officers. She did admit,however, that she had the previous conversation with defendant. In our view, Grierson's trialtestimony did not tend to disprove the People's position that defendant constructively possessedthe gun, nor did it affirmatively damage their case. Rather, Grierson's trial testimony merelyfailed to corroborate or bolster the officers' explanatory background testimony. Accordingly, thePeople should not have been permitted to impeach Grierson with her grand jury testimony(see People v Fitzpatrick, 40 NY2d 44, 52 [1976]; People v Abrams, 73 AD3d 1225, 1227 [2010], affd 17NY3d 760 [2011]; People v Andujar, 290 AD2d at 656; compare People v Davis, 45 AD3d1039, 1042 [2007], lv denied 10 NY3d 763 [2008]).
We cannot conclude that the two evidentiary errors can be characterized as harmless becausethe evidence against defendant was largely circumstantial and did not overwhelmingly establishhis guilt. Moreover, the People contravened County Court's limiting instructions during theirsummation by relying on Grierson's grand jury testimony as evidence of defendant's guilt(see CPL 60.35 [2]; People vThomas, 143 AD3d 923, 923-924 [2016]; compare People v Abrams, 73 AD3dat 1227) and by emphasizing the police officers' background testimony in a way that invited thejury to infer the truth of the out-of-court statements. In light of our determination, we reverse thejudgment and remit for a new trial (seePeople v Gaston, 147 AD3d 1219, 1222 [2017]). Defendant's remaining contention hasbeen rendered academic.
Peters, P.J., McCarthy, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Schenectady County for a newtrial.