| People v Thomas |
| 2018 NY Slip Op 06675 [165 AD3d 1636] |
| October 5, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v James D. Thomas, Jr., Also Known as Wayne Thomas,Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.),rendered September 15, 2014. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon 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]),arising from a vehicle stop during which the police discovered a firearm on the floorboard of thefront passenger seat where defendant had been sitting. We reject defendant's contention that theconviction is not supported by legally sufficient evidence. Viewing the evidence in the light mostfavorable to the People, we conclude that "the evidence is legally sufficient to establish thatdefendant constructively possessed the firearm, i.e., that he exercised dominion and control overthe area in which [the firearm was] found" (People v Boyd, 153 AD3d 1608, 1608 [4th Dept 2017], lvdenied 30 NY3d 1103 [2018] [internal quotation marks omitted]). "Based on the locationand position of the firearm, which was visible [on the floorboard] of the passenger seat. . . , and the fact that defendant was seated in that passenger seat, . . .'the jury was . . . entitled to accept or reject the permissible inference that defendantpossessed the weapon' " (id. at 1609). In addition, there was sufficient evidencethat defendant's possession of the firearm was knowing (see People v Muhammad, 16 NY3d 184, 188 [2011]; see generally People v Diaz, 24 NY3d1187, 1190 [2015]; People vLawrence, 141 AD3d 1079, 1082 [4th Dept 2016], lv denied 28 NY3d 1029[2016]).
We also reject defendant's contention that the verdict is against the weight of the evidence.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, although a different verdict would not have beenunreasonable, the jury did not fail to give the evidence the weight it should be accorded (seePeople v Bleakley, 69 NY2d 490, 495 [1987]; Boyd, 153 AD3d at 1610).
Defendant further contends that he was denied a fair trial by prosecutorial misconduct onsummation. Even assuming, arguendo, that defendant's contention is preserved for our reviewwith respect to all of the instances of alleged misconduct, we nevertheless conclude that it iswithout merit. Contrary to defendant's contention, "[t]he majority of the comments in questionwere within the broad bounds of rhetorical comment permissible during summations. . . , and they were either a fair response to defense counsel's summation or faircomment on the evidence . . . Even assuming, arguendo, that some of theprosecutor's comments were beyond those bounds, we conclude that they were not so egregiousas to deprive defendant of a fair trial" (People v McEathron, 86 AD3d 915, 916 [4th Dept 2011], lvdenied 19 NY3d 975 [2012] [internal quotation marks omitted]).
We also reject defendant's contention that Supreme Court's Sandoval rulingconstituted an abuse of discretion (see People v Sandoval, 34 NY2d 371, 374 [1974]).Contrary to defendant's contention, the prior charges against him for forgery in the second degreeand criminal impersonation in the second degree, and his conviction upon a guilty plea ofattempted burglary in the second degree in satisfaction of those charges, " 'involved actsof dishonesty and thus were probative with respect to the issue of defendant'scredibility' " (People vBynum, 125 AD3d 1278, 1279 [4th Dept 2015], lv denied 26 NY3d 927 [2015];see People v Walker, 83 NY2d 455, 461-462 [1994]; People v Taylor, 11 AD3d 930, 930-931 [4th Dept 2004], lvdenied 4 NY3d 749 [2004]). Contrary to defendant's related contention, the other priorcharge against him for leaving the scene of a personal injury incident without reporting, and hisconviction upon a guilty plea of unlawfully fleeing a police officer in a motor vehicle in the thirddegree in satisfaction of that charge, were probative of defendant's credibility inasmuch as suchacts showed the "willingness . . . [of defendant] to place the advancement of hisindividual self-interest ahead of principle or of the interests of society" (Sandoval, 34NY2d at 377; see People v Salsbery,78 AD3d 1624, 1626 [4th Dept 2010], lv denied 16 NY3d 836 [2011]). To the extentthat defendant contends otherwise, we conclude that the court did not err in permitting inquiryinto the prior charges satisfied by defendant's guilty pleas (see People v Walker, 66 AD3d 1331, 1332 [4th Dept 2009], lvdenied 13 NY3d 942 [2010]). " 'A dismissal in satisfaction of a plea is not anacquittal which would preclude a prosecutor from inquiring about the underlying acts of thecrime[s] because it is not a dismissal on the merits' " (id.; see People vFlowers, 273 AD2d 938, 938-939 [4th Dept 2000], lv denied 95 NY2d 905 [2000]).We conclude on this record that defendant failed to meet his burden "of demonstrating that theprejudicial effect of the admission of evidence [of the prior convictions and charges] forimpeachment purposes would so far outweigh the probative worth of such evidence on the issueof credibility as to warrant its exclusion" (Sandoval, 34 NY2d at 378).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto,Lindley, DeJoseph and Curran, JJ.