| People v Smith |
| 2019 NY Slip Op 05016 [173 AD3d 1441] |
| June 20, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Frederick Smith, Also Known as Freddy P,Appellant. |
Theodore J. Stein, Woodstock, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Paul DerOhannesian of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered March 4, 2016, upon a verdict convicting defendant of the crime of criminal possessionof a weapon in the second degree.
During the early morning hours of January 25, 2014, shots were fired in the parking lot of anightclub located in the Town of Lloyd, Ulster County. Responding police were informed thatthe individuals involved in the shooting had left the scene in a red vehicle; after a brief chase, thepolice stopped the vehicle. Defendant, who was seated in the rear of the vehicle, was observedthrowing a handgun out of the vehicle and was arrested and subsequently indicted for criminalpossession of a weapon in the second degree and criminal possession of a firearm. The charge ofcriminal possession of a firearm was thereafter dismissed and, following a jury trial on theremaining count, defendant was convicted of criminal possession of a weapon in the seconddegree. He was thereafter sentenced, as a second violent felony offender, to a prison term of 15years, to be followed by five years of postrelease supervision. Defendant appeals.
Defendant contends that the verdict is not supported by legally sufficient evidence and isagainst the weight of the evidence inasmuch as the People failed to prove that he intended to usethe subject handgun unlawfully against another and his possession thereof was otherwisetemporary and innocent. Initially, we find defendant's legal sufficiency argument to be withoutmerit. Contrary to defendant's contention, he was convicted of criminal possession of a weaponin the second degree pursuant to Penal Law § 265.03 (3), which, as relevant here,does not require the People to prove that he intended to use the weapon unlawfully againstanother (compare Penal Law § 265.03 [1]) and, instead, requires proof thatdefendant possessed "any loaded firearm" and that such possession occurred outside of his or herhome or place of business (Penal Law § 265.03 [3]; see People v McCoy, 169 AD3d1260, 1261 [2019], lv denied 33 NY3d 1033[2019]; People v Linares, 167 AD3d1067, 1068 [2018], lv denied 33 NY3d 950 [2019]). To that end, a defendant'spossession of the firearm may be actual or constructive (see Penal Law§ 10.00 [8]; People vRawlinson, 170 AD3d 1425, 1426 [2019]). Although the unlicensed possession of a gunmay not always constitute criminal conduct based upon "the innocent nature of the possession"and the People have the burden to prove, beyond a reasonable doubt, that defendant knowinglypossessed the weapon and that such possession was not innocent (People v Almodovar,62 NY2d 126, 130 [1984]; see People vHoles, 118 AD3d 1466, 1467 [2014]), "there must be proof in the record showing alegal excuse for [the defendant] having the weapon in his [or her] possession" (People vWilliams, 50 NY2d 1043, 1045 [1980]; see People v Banks, 76 NY2d 799, 801[1990]; People v LaDuke, 140AD3d 1467, 1468 [2016]; People vAlls, 117 AD3d 1190, 1191-1192 [2014]).
The evidence at trial established that, at approximately 4:00 a.m. on January 25, 2014, aspatrons were exiting the nightclub, a shootout ensued in the nightclub parking lot, causingpatrons to chaotically flee the scene. A security guard observed one of the shooters get into the"driver's side back seat of a red color, maroon colored four-door car," which then fled the scenejust ahead of the arriving police. The security guard pointed out the red car to the police, whothen gave chase. After the vehicle had stopped, a police sergeant attempted to remove defendantfrom the right rear side of the car, but defendant pulled back inside and then threw a handgun outonto the pavement. In the meantime, the driver pulled out another handgun and was shot by otherofficers. The vehicle then rolled away, coming to a stop when it hit an embankment. Defendantthen exited the rear passenger seat and ran away, but was apprehended by other officers shortlythereafter.
The gun that defendant threw out of the vehicle, a Kurz .380 semiautomatic handgun, wasrecovered and found to contain two rounds, one in the chamber and one in the magazine. Apolice investigator test-fired it and determined it to be operable, and the gun was swabbed forDNA; defendant's DNA was found on multiple locations on the gun. Although a different verdictwould not have been unreasonable, when viewing the evidence in a neutral light and accordingappropriate deference to the jury's factual findings and credibility determinations, we find that thePeople adduced evidence establishing that defendant possessed the gun in question outside of hishome or business and defendant's conduct, both before and after throwing the gun on the ground,was "utterly at odds with any claim of innocent possession," such that the verdict is not againstthe weight of the evidence (People v Williams, 50 NY2d at 1045; see People vLaDuke, 140 AD3d at 1468; Peoplev Dawson, 110 AD3d 1350, 1353 [2013], lv denied 23 NY3d 1035 [2014]; People v Curry, 85 AD3d 1209,1211 [2011], lv denied 17 NY3d 815 [2011]).
We reject defendant's contention that County Court's Molineux ruling denied him afair trial. "[E]vidence of uncharged crimes or prior bad acts may be admitted where they fallwithin the recognized Molineux exceptions—motive, intent, absence of mistake,common plan or scheme and identity—or where such proof is inextricably interwovenwith the charged crimes, provides necessary background or completes a witness's narrative and,further, the trial court determines that the probative value of such evidence outweighs itsprejudicial effect" (People v Ward,141 AD3d 853, 860 [2016] [internal quotation marks and citations omitted]; see People v Strauss, 155 AD3d1317, 1321 [2017], lv denied 31 NY3d 1122 [2018]). Although County Court'sinitial Molineux ruling precluded the introduction of evidence regarding the fact that avictim had been shot at the nightclub prior to defendant's subsequent stop and arrest, defendanteffectively opened the door to such testimony based upon his questioning of an undercoverofficer's conduct at the nightclub while that shooting was unfolding and his subsequentquestioning of a state trooper with respect to his purported lack of probable cause to apprehenddefendant after he fled the vehicle (seePeople v Smith, 157 AD3d 978, 980 [2018], lv denied 31 NY3d 1087 [2018]; People v DeCarr, 130 AD3d 1365,1367 [2015], lv denied 26 NY3d 1008 [2015]).
Finally, defendant failed to preserve for appellate review his contention that he was deniedhis constitutional and statutory right to a fair trial following County Court's substitution of analternate juror for a sworn juror after deliberations had commenced (see People v Smith, 136 AD3d532, 533 [2016], lv denied 27 NY3d 1075 [2016]; People v Ballard, 51 AD3d 1034,1035 [2008], lv denied 11 NY3d 734 [2008]; People v Copeland, 10 AD3d 588, 588-589 [2004], lvdenied 4 NY3d 743 [2004]; compare People v Garbutt, 42 AD3d 665, 667 [2007]). In anyevent, were this issue preserved, we would find it to be without merit, as defendant consented tothe substitution of the alternate juror and executed a signed writing to that effect, in open court,with the assistance of counsel, in the presence of the court (see NY Const, art I,§ 2; CPL 270.35 [1]; People v Ortiz, 92 NY2d 955, 957 [1998]; Peoplev Smith, 136 AD3d at 533; compare People v Page, 88 NY2d 1, 8-9 [1996];People v Ryan, 19 NY2d 100, 104-105 [1966]), and he is bound by the guilty verdictsubsequently rendered by the jury.[FN*] Defendant's related contention that CountyCourt violated his right to be present during the in camera questioning of the sworn juror is alsounpreserved for review (see People v Rios, 185 AD2d 1002, 1004 [1992], lvdenied 81 NY2d 846 [1993]; see also People v Mullen, 44 NY2d 1, 5-6 [1978]; People v Oakes, 57 AD3d 1425,1426 [2008], lv denied 12 NY3d 786 [2009]). Defendant's remaining contentions, to theextent not specifically addressed, have been reviewed and found to be without merit.
Garry, P.J., Lynch, Clark and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:"Regardless of how unwisedefendant now thinks that decision may have been, it was his to make and he must accept thedecision he knowingly, voluntarily and intelligently made along with the consequences of hisintentional actions and choices" (Peoplev Gajadhar, 9 NY3d 438, 448 [2007] [internal quotation marks and citation omitted]).