| People v Ray |
| 2018 NY Slip Op 01796 [159 AD3d 1429] |
| March 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v NathanielRay, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (David A. Heraty of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.),rendered April 29, 2016. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice by reducing the sentence imposed to an indeterminate termof incarceration of 16 years to life and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]), defendantcontends that the warrantless police search of the vehicle he was driving was unlawful and thatSupreme Court therefore erred in refusing to suppress the loaded handgun found by the police inan area behind the glove compartment. We rejected that same contention in the appeal of acodefendant (People v Johnson, 159 AD3d 1382 [4th Dept 2018] [decided herewith]), ruling that the search was lawful under the automobileexception to the warrant requirement because the police had probable cause to believe that therewas a gun in the vehicle (see generally People v Galak, 81 NY2d 463, 466-467 [1993];People v Blasich, 73 NY2d 673, 678 [1989]), and there is no reason to reach a differentresult here. At the time of the search, the police were acting upon information from an identifiedcitizen that someone had fired shots at him 10 minutes earlier and then entered defendant'svehicle, which defendant drove away. The police stopped the vehicle three blocks from theshooting and conducted the search after ordering its three occupants to exit the vehicle. Althoughit is possible, as defendant contends, that the gun was no longer in the vehicle by the time it wasstopped, it was more probable than not that it was still there, thus justifying the search. "Probablecause does not require proof beyond a reasonable doubt," but merely requires "a reasonableground for belief" (People v Simpson, 244 AD2d 87, 91 [1st Dept 1998]).
We reject defendant's further contention that the People failed to prove beyond a reasonabledoubt that he possessed the weapon. Pursuant to the automobile presumption set forth in PenalLaw § 265.15 (3), "[t]he presence in an automobile, other than a stolen one or apublic omnibus, of any firearm . . . is presumptive evidence of its possession by allpersons occupying such automobile at the time such weapon . . . is found," withexceptions not relevant here. The presumption applies here because the gun was found inside thevehicle that defendant was driving, and there was no evidence at trial to rebut the presumption.Moreover, the evidence at trial established that defendant must have known that the gun was inhis vehicle, and he took no steps to distance himself from it during the 10-minute period betweenthe shooting and the stop of his vehicle by the police. Thus, viewing the evidence in the lightmost favorable to the People, as we must (see People v Contes, 60 NY2d 620, 621[1983]), we conclude that there is a valid line of reasoning and permissible inferences that couldlead a rational person to conclude that defendant possessed the loaded firearm (see generallyPeople v Bleakley, 69 NY2d 490, 495[*2][1987]). Viewingthe evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we further conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495). "Even assuming, arguendo, that adifferent verdict would not have been unreasonable, we cannot conclude that the jury failed togive the evidence the weight it should be accorded" (People v Terborg, 156 AD3d 1320, 1321 [4th Dept 2017]; seegenerally Bleakley, 69 NY2d at 495).
We agree with defendant, however, that the sentence imposed, an indeterminate term ofimprisonment of 25 years to life as a persistent violent felony offender, is unduly harsh andsevere. Defendant did not fire or even directly possess the weapon, and there is no evidence thathe knew that his codefendant intended to use it unlawfully. Although defendant has multipleprior felony convictions, several of which are for weapon offenses, he has no history of violenceon his record, and his conduct in this case does not in our view warrant the maximum sentencepermitted by law. We therefore modify the judgment as a matter of discretion in the interest ofjustice by reducing the sentence to an indeterminate term of imprisonment of 16 years to life(see generally CPL 470.15 [6] [b]). Present—Peradotto, J.P., Lindley, DeJosephand Winslow, JJ.