| People v McCoy |
| 2019 NY Slip Op 01456 [169 AD3d 1260] |
| February 28, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JemarL. McCoy, Appellant. |
George P. Ferro, Albany, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (M. Hyder Hussain of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.), renderedJuly 18, 2016, upon a verdict convicting defendant of the crimes of criminal possession of a weapon inthe second degree (three counts) and criminal possession of a weapon in the third degree (fourcounts).
In 2016, defendant was indicted on three counts of criminal possession of a weapon in the seconddegree and four counts of criminal possession of a weapon in the third degree and, following a jury trial,was convicted as charged. Defendant was subsequently sentenced, as a second violent felony offender,to three concurrent prison terms of 12 years, followed by five years of postrelease supervision, for hisconvictions of criminal possession of a weapon in the second degree and lesser concurrent terms on hisremaining convictions. Defendant now appeals.
Defendant's challenge to the legal sufficiency of the evidence—specifically, that the evidenceadduced at trial did not support a finding that he exercised dominion and control over the area in whichthe firearms and ammunition were found—is unpreserved for our review, as defendant did notraise this particular argument in the context of his motion for a trial order of dismissal (see People v Taylor, 163 AD3d 1275,1275-1276 [2018], lv denied 32 NY3d 1068 [2018]; People v Zayas-Torres, 143 AD3d 1176, 1180 [2016], lv denied30 NY3d 984 [2017]). Nevertheless, in the course of reviewing defendant's contention that the verdictis against the weight of the evidence, we necessarily evaluate whether all elements of the charged crimeswere proven beyond a reasonable doubt (seePeople v Wells, 141 AD3d 1013, 1020 [2016], lv denied 28 NY3d 1189 [2017]; People v Oliver, 135 AD3d 1188, 1190[2016], lv denied 27 NY3d 1003 [2016]). In conducting a weight of the evidence review, weview the evidence in a neutral light and determine first whether a different verdict would have beenunreasonable and, if not, " 'weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony to determine if theverdict is supported by the weight of the evidence' " (People v Martinez, 166 AD3d 1292, 1293-1294 [2018], quoting People v Jemmott, 164 AD3d 953,954-955 [2018], lv denied 32 NY3d 1112 [2018]).
With respect to counts 1, 2 and 3 of the indictment, a person is guilty of criminal possession of aweapon in the second degree when that person knowingly possesses any loaded firearm (seePenal Law § 265.03 [3]; see generally People v Saunders, 85 NY2d 339,341-342 [1995]).[FN1] A" '[l]oaded firearm' means any firearm loaded with ammunition or any firearm which ispossessed by one who, at the same time, possesses a quantity of ammunition which may be used todischarge such firearm" (Penal Law § 265.00 [15]). As charged in counts 4, 5 and 6 ofthe indictment, a person is guilty of criminal possession of a weapon in the third degree when he or sheknowingly possesses any firearm and has been previously convicted of any crime (see PenalLaw §§ 265.01 [1]; 265.02 [1]; People v Jemmott, 164 AD3d at 955; see generally People v Parrilla, 27 NY3d400, 403-404 [2016]). As charged in count 7 of the indictment, a person is guilty of criminalpossession of a weapon in the third degree when he or she knowingly possesses three or more firearms(see Penal Law § 265.02 [5] [i]; People v Saunders, 85 NY2d at341-342). For all counts, the term "firearm" means any operable pistol or revolver (see PenalLaw § 265.00 [3]; People v Longshore, 86 NY2d 851, 852 [1995]). Further, adefendant may be found to possess a firearm through actual, physical possession or throughconstructive possession (see Penal Law § 10.00 [8]). Constructive possessionrequires proof "that the defendant exercised 'dominion or control' over the property by a sufficient levelof control over the area in which the contraband is found" (People v Manini, 79 NY2d 561,573 [1992]; see Penal Law § 10.00 [8]; People v Rodwell, 122 AD3d 1065, 1067-1068 [2014], lvdenied 25 NY3d 1170 [2015]).
At trial, defendant's girlfriend testified that, around 2:30 a.m. on a morning in January 2016, sheheard someone enter the front door of the duplex apartment that she shared with defendant, her sister,and her and defendant's one-year-old son. The girlfriend stated that she heard the person walk past herbedroom, open the back door and ascend the attic stairs, after which she heard "[b]anging." She statedthat she went to the attic to investigate and, although she initially claimed that she did not know who shesaw, she ultimately testified that she observed defendant "hammering" one of the steps on the stairwayleading to the attic. The girlfriend additionally stated that, when she asked defendant what he was doing,he "told [her] to mind [her] f . . .**g business and go back to bed," which she did. Thegirlfriend testified that, the following day, when defendant was out of the house, she pulled up the atticstep that she had seen defendant hammering, discovered plastic bags containing three handguns andthereafter summoned her sister to view her discovery. Both the girlfriend and the sister testified that thegirlfriend subsequently reported finding the handguns to a state trooper with whom the girlfriend wasacquainted and that the state trooper relayed the report to local law enforcement officers, whoultimately responded to the scene and secured the weapons. When testifying, the girlfriend, the sisterand a tenant in the downstairs apartment—who had access to the attic—all deniedownership of the handguns.
The responding police officers stated that, upon arriving at the apartment, thegirlfriend—who one officer described as "emotional," "panicked" and "scared"—led themto the attic and directed them to a particular attic stair, under which they could see two plastic bags.According to the testimony, while one police officer remained with defendant, who came home at somepoint during the search, another officer secured from under the stair three firearms, along withassociated ammunition—a Smith & Wesson .357 revolver with a quantity of .357ammunition, a 9 millimeter semiautomatic pistol with a magazine containing 9 millimeter ammunition anda .25 caliber semiautomatic pistol with an "appropriate" magazine containing a quantity ofammunition.[FN2] As furtherestablished by the testimony, all three recovered firearms were test-fired by a police investigator anddetermined to be operational. Finally, the evidence revealed that, despite testing, no visible or latentfingerprints were found on the firearms and that any recovered DNA was either insufficient or toocomplex for comparison.
In our view, it would not have been unreasonable for the jury to have acquitted defendant of thecharges, given that the evidence established that other people, including the downstairs neighbors, hadaccess to the attic area and that the eyewitness testimony offered by the girlfriend—whosecredibility was called into doubt at trial—merely placed defendant in the area in which thefirearms were later discovered. However, we emphasize that constructive possession may beestablished through either direct or circumstantial evidence (see People v McGough, 122 AD3d 1164, 1166 [2014], lvdenied 24 NY3d 1220 [2015]) and "may be found 'even though others may have access to [the]premises' " (People v Stewart, 95AD3d 1363, 1364 [2012], lv denied 19 NY3d 1001 [2012], quoting People v Pinkney, 90 AD3d 1313,1314-1315 [2011]). Moreover, the girlfriend's credibility was explored and challenged at trial and,notwithstanding her inconsistent trial testimony, the jury ultimately decided to credit her account (seePeople v Jemmott, 164 AD3d at 956). Viewing the evidence in a neutral light and accordingappropriate deference to the jury's credibility determinations, we do not find the verdict to be againstthe weight of the evidence (see People v McGough, 122 AD3d at 1166-1167; People vStewart, 95 AD3d at 1364; People vCarter, 74 AD3d 1375, 1377-1378 [2010], lv denied 15 NY3d 772 [2010]; People v Edwards, 39 AD3d 1078,1080 [2007]).
Defendant also argues that County Court erred in denying his pretrial motion to dismiss theindictment on the ground that the People did not provide him with notice of the pending grand juryproceedings so as to afford him "a reasonable time to exercise his right to appear as a witness" at suchproceedings (CPL 190.50 [5] [a]). The record reflects that, at an appearance in Elmira City Court onJanuary 25, 2016, one day after defendant's arraignment on a felony complaint, the People providedboth the court and defendant with a notice of prospective grand jury presentment. The record alsodemonstrates that, at 10:36 a.m. that same day, the People faxed a copy of the notice of presentment todefense counsel. Defendant never thereafter served upon the People a written notice of intent to testifybefore the grand jury. Under these circumstances, we are satisfied that defendant was provided withreasonable notice of the prospective grand jury proceedings (see People v Miller, 160 AD3d 1040, 1041 [2018], lv denied 32NY3d 939 [2018]; People v Dorsey,151 AD3d 1391, 1393 [2017], lv denied 30 NY3d 949 [2017]).
Defendant further challenges County Court's Sandoval ruling, which directed that thePeople would be permitted to cross-examine defendant, should he testify, on convictions for assault inthe third degree and criminal possession of a controlled substance in the third degree from 1994, aswell as a 1997 conviction for criminal sale of a controlled substance in the third degree, but that theycould not question him on more recent convictions for resisting arrest and attempted sexual abuse in thefirst degree. However, because he failed to object to the ruling at the close of the hearing, defendant'sargument is not preserved for our review (seePeople v Nunez, 160 AD3d 1225, 1226 [2018]; People v Pittman, 160 AD3d 1130, 1130 [2018], lv denied 31NY3d 1151 [2018]). Were we to consider the issue, we would find it to be without merit. Although the1994 and 1997 convictions were remote in time, their age does not automatically disqualify them frombeing used to impeach defendant's credibility (see People v Gray, 84 NY2d 709, 712 [1995];People v Portis, 129 AD3d 1300,1303 [2015], lv denied 26 NY3d 1091 [2015]; People v Wright, 38 AD3d 1004, 1005-1006 [2007], lv denied 9NY3d 853 [2007]). Furthermore, the three prior convictions at issue demonstrated defendant'swillingness to place his own interests above that of society and, thus, were probative of his credibility(see People v Cherry, 149 AD3d1346, 1348 [2017], lv denied 29 NY3d 1124 [2017]; People v Martin, 136 AD3d 1218,1219 [2016], lv denied 28 NY3d 972 [2016]). Although it would have been reasonable forCounty Court to employ a Sandoval compromise by precluding inquiry into the facts underlyingthe convictions, were this issue properly before us, we would find no abuse of discretion in CountyCourt's ruling (see People v Mattis, 108AD3d 872, 875 [2013], lv denied 22 NY3d 957 [2013]; People v Muniz, 93 AD3d 871, 875[2012], lv denied 19 NY3d 965 [2012]; People v Mitchell, 57 AD3d 1308, 1311-1312 [2008]).
Nor do we find that defendant received ineffective assistance of counsel. "New York'sconstitutional requirement of effective assistance of counsel is met when 'the evidence, the law, and thecircumstances of a particular case, viewed in totality and as of the time of the representation, reveal thatthe attorney provided meaningful representation' " (People v Gross, 26 NY3d 689, 693 [2016], quoting People vBenevento, 91 NY2d 708, 712 [1998]). Here, defense counsel, among other things, made cogentopening and closing statements, thoroughly cross-examined the People's witnesses, successfully arguedfor the preclusion of inculpatory evidence and advanced a clear defense strategy aimed at discreditingthe girlfriend and challenging the People's constructive possession case. Even if defense counsel shouldhave requested a circumstantial evidence charge, we find that, viewed in totality, the representationafforded to defendant was meaningful (seePeople v Spencer, 152 AD3d 863, 868 [2017], lv denied 30 NY3d 983 [2017]; People v Ramos, 133 AD3d 904, 909[2015], lv denied 26 NY3d 1149 [2016]). Given that "our state standard . . .offers greater protection than the federal test" and the state standard was satisfied here, defendant'sclaim of ineffective assistance of counsel under the US Constitution also fails (People v Caban, 5 NY3d 143, 156[2005]; see People v Ramos, 48 AD3d984, 987-988 [2008], lv denied 10 NY3d 938 [2008], cert denied 556 US 1110[2009]).
Defendant's remaining arguments require little discussion. County Court issued a properconstructive possession charge to the jury and did not, as defendant asserts, omit the word "sufficient"when instructing the jury as to the level of control that is required over the area in question. Indeed, inconformity with the relevant pattern jury instruction, County Court instructed that "a person has tangibleproperty in his constructive possession when that person exercises a level of control over the area inwhich the property is found, or over the person from whom the property is seized, sufficient togive him the ability to use or dispose of the property" (emphasis added; see CJI2d[NY]Physical and Constructive Possession; see generally People v Torres, 68 NY2d 677, 679[1986]). Finally, given defendant's criminal history, we do not find defendant's sentence to be harsh orexcessive (see People v Cherry, 149 AD3d at 1348; People v Oliver, 135 AD3d at1191). To the extent that any of defendant's remaining contentions have not been addressed, they havebeen reviewed and found to lack merit.
Lynch, J.P., Mulvey, Devine and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:The home exception embodied inPenal Law § 265.03 (3), which provides that possession of a loaded firearm within one'sown home generally does not constitute a violation of that subdivision, is inapplicable to defendant,given that he has been previously convicted of a crime (see People v Jones, 22 NY3d 53, 57-59 [2013]; see also PenalLaw § 265.02 [1]).
Footnote 2:There is simply no merit todefendant's argument that the firearms cannot be considered loaded within the meaning of Penal Law§ 265.03 (3) because the associated ammunition was found separate from the firearms(see Penal Law § 265.00 [15]; People v Gordian, 99 AD3d 538, 538 [2012], lv denied 20NY3d 1061 [2013]).