| People v Jemmott |
| 2018 NY Slip Op 05632 [164 AD3d 953] |
| August 2, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Malcolm Q. Jemmott, Appellant. |
John Ferrara, Monticello, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered February 27, 2015, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree and criminal possession of a weapon in the thirddegree (two counts).
The facts underlying this case are set forth in detail in our prior decision that partially granteddefendant's motion to suppress certain evidence, vacated the judgment entered upon defendant'splea and remitted the matter for further proceedings (116 AD3d 1244 [2014]). Following a jurytrial, defendant was convicted of criminal possession of a weapon in the second degree and twocounts of criminal possession of a weapon in the third degree. He was sentenced, as a secondfelony offender, to an aggregate prison term of 15 years, followed by five years of postreleasesupervision. Defendant now appeals.
Initially, defendant maintains that County Court erred, upon remittal, in failing tosuppress—and therefore allowing into evidence—photographs of a gun, which wereretrieved during the search of his cell phone pursuant to a warrant issued by City Court. Weagree. At issue is whether the warrant application provided probable cause for the issuance of thewarrant. To establish probable cause, a warrant application must include "information sufficientto support a reasonable belief that . . . evidence of a crime may be found in a certainplace" (People v Bigelow, 66 NY2d 417, 423 [1985]; see People v Alberts, 161 AD3d 1298, 1304 [2018], lv [*2]denied 31 NY3d 1114 [June 29, 2018]; Peoplev Vanness, 106 AD3d 1265, 1266 [2013], lv denied 22 NY3d 1044 [2013]). Apresumption of validity attaches to a search warrant signed by a magistrate (see People v Brooks, 152 AD3d1084, 1086 [2017]; People v Vanness, 106 AD3d at 1266), and a court'sdetermination that there is a probable cause for a search warrant "must be afforded greatdeference" (People v Anderson, 149AD3d 1407, 1408 [2017] [internal quotation marks and citations omitted], lv denied30 NY3d 947 [2017]).
The warrant at issue was based on the affidavit of City of Kingston Police Detective EricVan Allen, which briefly discussed the underlying incident and detailed his knowledge of certaingang activity in the area where defendant was arrested. After critiquing the application andsevering various paragraphs as unreliable under the Aguilar-Spinelli test, County Courtessentially reasoned that, as a matter of "common sense and every day experience," theapplication was sufficient to support the reasonable belief that photographic evidence of the guncould be found on the phone. The flaw in this reasoning is that common sense alone does notestablish probable cause to search a person's cell phone. Recent decisions of the Supreme Courtof the United States have emphasized the significant privacy interest that an individual has in theinformation stored in his or her cell phone (see Carpenter v United States, 585 US&mdash, &mdash, 138 S Ct 2206, 2217 [2018]; Riley v California, 573 US &mdash,&mdash, 134 S Ct 2473, 2485 [2014]). Here, because the allegations remaining after CountyCourt struck those that were unreliable did not indicate that a search of defendant's cell phonewould yield evidence that a crime had occurred, was occurring or was about to occur (seePeople v Mercado, 68 NY2d 874, 876 [1986], cert denied 479 US 1095 [1987]), thewarrant application did not provide a reasonable factual basis for the issuance of the warrant (see People v Moxley, 137 AD3d1655, 1656 [2016]). That said, the photographs do not reveal any identifying featuresestablishing that the gun depicted in the photographs was the same gun seized from the vehicle.Given the overwhelming proof linking defendant to the gun seized from the vehicle, as outlinedbelow, "there is no reasonable possibility that the [admission of photographs] might havecontributed to defendant's conviction and [the error] was thus harmless beyond a reasonabledoubt" (People v Crimmins, 36 NY2d 230, 237 [1975]; cf. People v Hoyle, 211AD2d 973, 974 [1995], lv denied 86 NY2d 736 [1995]).
Next, defendant contends that the verdict was against the weight of the evidence. To resolvesuch a claim, we "first determine whether, based on all the credible evidence, a different findingwould not have been unreasonable and then weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony to determine if the verdict is supported by the weight of the evidence" (People v Yedinak, 157 AD3d1052, 1055 [2018] [internal quotation marks and citations omitted]; see People vBleakley, 69 NY2d 490, 495 [1987]; People v Worthington, 150 AD3d 1399, 1400 [2017], lvdenied 29 NY3d 1095 [2017]). "This analysis entails viewing the evidence in a neutral lightand giving deference to the jury's credibility assessments" (People v Kiah, 156 AD3d 1054, 1055 [2017] [internal quotationmarks and citations omitted], lv denied 31 NY3d 984 [2018]).
Relevant here, a person is guilty of criminal possession of a weapon in the second degreewhen he or she "possesses any loaded firearm" (Penal Law § 265.03 [3]). A loadedfirearm is defined as "any firearm loaded with ammunition or 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]). A person is guilty of criminal possessionof a weapon in the third degree when he or she knowingly possesses any firearm and he or shehas been [*3]previously convicted of any crime or where he orshe possesses a defaced firearm (see Penal Law §§ 265.01, 265.02 [1],[3]). Criminal possession may be established through either actual possession or constructivepossession, with the latter requiring proof that the defendant "exercised dominion and controlover the contraband or the area where the contraband was found" (People v Perry, 116 AD3d 1253,1254 [2014] [internal quotation marks and citations omitted]; see People v Graham, 138 AD3d 1242, 1242 [2016], lvdenied 28 NY3d 930 [2016]).
At trial, Frederick Norfleet testified that he was outside of his house when he saw hisgirlfriend get into the passenger seat of a green minivan and then watched as the minivan droveaway. Approximately five minutes later, the minivan returned and the girlfriend got out and wentinside of the house. Norfleet testified that, shortly thereafter, a "guy"—later identified asdefendant—walked up and said he was looking for someone. Norfleet did not know whodefendant was talking about and defendant responded, "well if you did you better let her knowthat I am going to air this . . . out," which Norfleet interpreted to mean thatdefendant would "shoot the place up." Defendant began to walk away, but when Norfleet'sgirlfriend came back outside, defendant turned back, grabbed her, pushed her up against the fenceand held a gun against her head. Norfleet described the gun as a black automatic weapon.Defendant left after Norfleet gave him money.
Van Allen testified that Norfleet's girlfriend flagged him down as he was driving through theneighborhood. She was crying and upset and pointed to defendant, who was down the street, andsaid "that's the guy." Van Allen followed defendant before stopping him and conducting apat-down search, which yielded a wallet containing two identification cards—one bearingdefendant's name—a cell phone and a car key. While defendant was in custody, Van Allenreturned to speak with Norfleet and his girlfriend and, after learning of the minivan, found theminivan near the area where he first stopped defendant. When Van Allen looked inside of theminivan, he saw an open backpack on the backseat and the butt of a gun sticking out from thebackpack. Using the car key that he had seized from defendant, he opened the minivan anddiscovered in the backpack numerous documents bearing defendant's name and a .40 caliberGlock model 23, with two magazines, 20 bullets and a holster. Van Allen testified that the gunwas loaded. Two other police officers testified that the gun was tested and confirmed that the gunwas, in fact, loaded and fully operable. Another witness—a forensicscientist—testified that the gun was defaced with scratches to cover and to remove theserial number. Defendant presented testimony by a forensic scientist who confirmed thatdefendant's DNA was not found on the side of the gun and that her comparison with other partsof the minivan and gun was otherwise inconclusive.
Given this testimony, we conclude that a different verdict would not have been unreasonable.We do not, however, find that the verdict was against the weight of the evidence. Contrary todefendant's argument, a finding of exclusive access to the area where a weapon is found is notnecessary to establish constructive possession (see People v Victor, 139 AD3d 1102, 1105 [2016], lvdenied 28 NY3d 1076 [2016]; People v Pinkney, 90 AD3d 1313, 1314-1315 [2011]), andconstructive possession may be established through circumstantial evidence (see People vPerry, 116 AD3d at 1254). Insofar as defendant claims Norfleet was not credible, this wasexplored during cross-examination and was a matter for the jury's consideration (see People v Criss, 151 AD3d1275, 1279 [2017], lv denied 30 NY3d 979 [2017]; People v Worthington,150 AD3d at 1400).
Defendant also argues that County Court should have allowed his attorney to cross-[*4]examine Van Allen about a purported prior arrest. Despite thePeople's application, County Court declined to issue an order precluding any such questioning,but advised that the issue would be "re-visited" if counsel could establish a good faith basis. Attrial, defendant's counsel cross-examined Van Allen, but never sought to ask about the purportedinvestigation. Accordingly, this claim is of no moment (see People v George, 67 NY2d817, 818-819 [1986]). Similarly, because trial counsel agreed with the court that thecircumstantial evidence charge was not necessary, this challenge is not preserved for ourreview.
Finally, we do not find that defendant's sentence, though the statutory maximum, was harshor excessive. Under the circumstances of this case, we find no abuse of discretion orextraordinary circumstances to warrant a reduction of the sentence in the interest of justice (see People v Major, 143 AD3d1155, 1160 [2016], lv denied 28 NY3d 1147 [2017]; People v Fairley, 63 AD3d 1288,1290 [2009], lv denied 13 NY3d 743 [2009]). Defendant's claim that he received a longersentence because he exercised his constitutional right to trial is not preserved for our review(see People v Hurley, 75 NY2d 887, 888 [1990]; People v Watson, 150 AD3d 1384, 1387 [2017], lv denied29 NY3d 1135 [2017]). If we were to consider this claim, which defendant supports bycomparing the sentence that was offered with the sentence received after trial, we would find it tobe without merit (see People v Pena, 50 NY2d 400, 411-412 [1980], cert denied449 US 1087 [1981]).
Egan Jr., J.P., Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.