| People v Linares |
| 2018 NY Slip Op 08369 [167 AD3d 1067] |
| December 6, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Carlos Linares, Appellant. |
Mitchell S. Kessler, Cohoes, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered July 1,2016 in Albany County, upon a verdict convicting defendant of the crime of criminal possessionof a weapon in the second degree.
After a jury trial wherein defendant and a codefendant were tried together, defendant wasconvicted of one count of criminal possession of a weapon in the second degree in connectionwith a police investigation during which detectives used a confidential informant (hereinafter CI)to set up a meeting to purchase firearms. At that meeting, police seized five weapons andammunition from a vehicle and arrested the occupants of the vehicle—defendant, thecodefendant and two others. Thereafter, Supreme Court sentenced defendant to five years inprison, followed by five years of postrelease supervision. Defendant now appeals. Weaffirm.
The verdict is not against the weight of the evidence. A weight of the evidence reviewrequires us to "first determine, based on all of the credible evidence, whether a different resultwould have been unreasonable and, if not, weigh the relative probative force of conflictingtestimony and the relative strength of conflicting inferences that may be drawn from thetestimony" (People v Wilson, 164AD3d 1012, 1014 [2018]; seePeople v Danielson, 9 NY3d 342, 348 [2007]; People v Perry, 154 AD3d 1168, 1169 [2017]). As charged here, adefendant is guilty of criminal possession of a weapon in the second degree when he or she"possesses any loaded firearm" and such possession does not take place in that person's "home orplace of business" (Penal Law § 265.03 [3]).
At trial, Kevin Meehan, a City of Albany police detective, testified that he worked with theCI who told him that he had a connection in New York City who would sell him firearms.Meehan stated that he did some preliminary research into the CI's connection and discovered thatthe phone number the CI used to contact him was registered to a man from Virginia, known asKarreim Richardson, the codefendant, who ultimately became the target of the investigation. In arecorded phone call, the CI arranged for Richardson to bring firearms to the Albany area. Meehantestified that on July 19, 2015, the CI and Richardson made arrangements to meet at theUniversity at Albany to complete the transaction. According to Meehan's testimony, he observeda vehicle in a parking lot with a Virginia registration that matched the location as described byRichardson to the CI. Meehan stated that he observed four people in the vehicle and thateventually those four people were taken into custody. Scott Gavigan, another police detective,testified that he worked with Meehan in this investigation, searched the vehicle and found: (1) aloaded handgun next to the driver's seat; (2) three handguns in a shoe box, which was inside anorange bag stowed in the back of the vehicle; (3) a semiautomatic rifle in the third row seat,which had been folded down; (4) a magazine for the rifle under the seat where the rifle wasfound; and (5) various ammunition in a plastic bag. Two additional police detectives testified tohaving conducted test fires of the weapons found in the vehicle, using the ammunition also foundin the vehicle, and that all of the firearms, including the semiautomatic rifle found under the thirdrow seat, were operable.
Jessica Brissett testified that she is an acquaintance of defendant and Richardson and that, onthe morning of July 19, 2015, they came to her house in Brooklyn. When they arrived, Brissettstated that she saw defendant carrying a large gun, which she told him to put in a closet. Brissetttestified that the men left for a few hours and, when they returned, they asked her if she wanted toaccompany them to Albany. Brissett invited her friend, Keisha Jeffrey, to join them. Brissetttestified that defendant was carrying the large gun at his side when he left her house. Brissettstated that Jeffrey got into a black SUV and sat behind the passenger seat. Brissett hearddefendant ask Jeffrey to pass the large gun to him in the back. Brissett testified that when theyarrived in Albany, they parked in an area with vending machines and, after a "couple minutes,"police ran up to the vehicle, ordered them to drop everything and she was arrested. Brissett alsotestified that she was appearing at trial under subpoena and that the case against her would bedismissed in exchange for her "truthful testimony."
Jeffrey also testified that she was acquainted with defendant and Richardson and that sheagreed to travel with them to Albany. Jeffrey stated that before the group left for Albany, sheobserved defendant take a large gun from a closet at Brissett's house and that defendant placed itin the center console of the vehicle. Brissett testified that she told defendant that they could notdrive like that, so defendant got out of the car and went to the back of the car, putting the gununder the folded down back seat after Jeffrey passed it to him from the front of the vehicle.Jeffrey further testified that when they arrived in Albany, they parked in a parking lot near avending machine and that Richardson made a call, while defendant and Brissett went to use thevending machine. Once everyone had returned to the vehicle, she testified, the police showed upand she was arrested.
Carrie Pettit, a forensic scientist at the State Police Forensic Investigation Center, testifiedthat she tested the guns recovered from the vehicle for DNA and found two sets of DNA on thelarge gun, one for a female major contributor and one for a minor contributor that wasinsufficient to determine whether it came from a male or a female. On cross-examination,defendant's counsel explicitly asked Pettit whether defendant's DNA was found on any of theweapons recovered from the vehicle and Pettit stated, "There wasn't enough information to makean inclusion or an exclusion."
Based on the foregoing, another verdict would not have been unreasonable (see People vDanielson, 9 NY3d at 348; People v Wilson, 164 AD3d at 1014); however, bothBrissett and Jeffery testified that they saw defendant with the gun earlier in the day and that theysaw defendant load the gun into the vehicle, even helping him do so. This testimony wasconsistent with the testimony of Pettit, who testified that female DNA was found on the largegun, which corresponds to the account given by both Brissett and Jeffrey that Jeffrey handled thegun. Also, both Brissett and Jeffrey testified that defendant put the gun under the folded downback seat, which is where Gavigan testified to finding the gun. To the extent that defendantalleges that the testimony of Brissett and Jeffrey is not credible, such credibility issues are withinthe province of the jury to resolve, and we accord deference to its determination (see People v Favors, 155 AD3d1081, 1083 [2017]; People vBowman, 139 AD3d 1251, 1252 [2016], lv denied 28 NY3d 927 [2016]; People v Griffin, 26 AD3d 594,596 [2006], lv denied 7 NY3d 756 [2006]). Thus, we do not find defendant's convictionto be against the weight of the evidence (see People v Favors, 155 AD3d at 1083-1084;People v Worthington, 150 AD3d1399, 1401-1402 [2017], lv denied 29 NY3d 1095 [2017]; People v Graham, 138 AD3d1242, 1243 [2016], lv denied 28 NY3d 930 [2016]).
We turn next to defendant's arguments regarding Supreme Court's instructions to the jury.Initially, by not objecting when the charge was given or raising this issue at the chargeconference, defendant failed to preserve his argument that the court erred in charging the jury thatit was not to draw an adverse inference from defendant's decision not to testify (see People v Williams, 163 AD3d1160, 1164 n [2018]; People vRobtoy, 144 AD3d 1190, 1192 [2016], lv denied 28 NY3d 1150 [2017]).Defendant also argues that Supreme Court improperly denied his request for the "impeachmentby benefit conferred" jury instruction, instead giving the interested witness instruction. Inreviewing the record, defendant's counsel specifically questioned Brissett on her motivation totestify, highlighting that she was told that the case against her would be dropped in exchange forher testimony. Moreover, during summation, defendant belabored the notion that both Brissettand Jeffrey could be lying to help the People so that the charges against them would be dropped.Considering the charge that was given in the context of the trial, the jury charge was sufficient togive the jury notice that it should carefully scrutinize the testimony of Brissett and Jeffrey (see People v Miller, 160 AD3d1040, 1044 [2018], lv denied 32 NY3d 939 [2018]; People v Acevedo, 112 AD3d 985,988 [2013], lv denied 23 NY3d 1017 [2014]; People v Wilson, 100 AD3d at1048).
We also reject defendant's argument that he was denied the effective assistance of counseldue to a failure to request an accomplice-in-fact jury instruction. Defendant has failed tosufficiently show that there was no legitimate trial strategy behind the decision not to request thisjury instruction (see People vWilliams, 156 AD3d 1224, 1231 [2017], lv denied 31 NY3d 1018 [2018]; People v Lawrence, 141 AD3d828, 833 [2016], lv denied 28 NY3d 1073 [2016]; People v Thorpe, 141 AD3d 927,934 [2016], lv denied 28 NY3d 1031 [2016]). Moreover, when reviewing trial counsel'srepresentation in its entirety, we are satisfied that defendant received the effective assistance ofcounsel (see People v McCauley,162 AD3d 1307, 1311 [2018], lv denied 32 NY3d 939 [2018]; People v Ariosa, 100 AD3d 1264,1266 [2012], lv denied 21 NY3d 1013 [2013]).
Egan Jr., J.P., Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.