| People v Bennett |
| 2020 NY Slip Op 00957 [180 AD3d 1357] |
| February 7, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Shane M. Bennett, Appellant. |
Leanne Lapp, Public Defender, Canandaigua, D.J. & J.A. Cirando, PLLC,Syracuse (Rebecca Konst of counsel), for defendant-appellant.
James B. Ritts, District Attorney, Canandaigua (V. Christopher Eaggleston ofcounsel), for respondent.
Appeal from a judgment of the Supreme Court, Ontario County (Craig J. Doran, J.),rendered July 25, 2016. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree (six counts), criminal possession ofa weapon in the third degree (10 counts) and criminal possession of marihuana in thefourth degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Ontario County, for further proceedings in accordance withthe following memorandum: Defendant appeals from a judgment convicting him upon ajury verdict of six counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [2], [3]), 10 counts of criminal possession of a weapon in thethird degree (§ 265.02 [8]), and one count of criminal possession ofmarihuana in the fourth degree (§ 221.15).
We conclude that Supreme Court properly refused to suppress statements defendantmade to the police after his arrest. Contrary to defendant's contention, the court did noterr in crediting the suppression hearing testimony of the police officer who issuedMiranda warnings to defendant because of the officer's inability to recall certaindetails about the morning in question, such as what he first said to defendant during theencounter or whether his patrol vehicle's dome light was illuminated at that time.Although the officer's inability to recall certain details about the encounter is a factor toconsider in determining his credibility, we conclude that there is "no basis to disturb thecourt's credibility assessments of the officer[ ] inasmuch as [n]othing about the officer['s]testimony was unbelievable as a matter of law, manifestly untrue, physically impossible,contrary to experience, or self contradictory" (People v Clanton, 151 AD3d 1576, 1577 [4th Dept 2017][internal quotation marks omitted]; see People v Walker, 128 AD3d 1499, 1500 [4th Dept2015], lv denied 26 NY3d 936 [2015]).
Defendant further contends that the evidence is legally insufficient to support theconviction with respect to the weapon possession counts and that the court thus erred indenying his motion for a trial order of dismissal. At the close of the People's case,defendant moved for a trial order of dismissal on the ground that the evidence waslegally insufficient to establish his possession of certain weapons, and the court reserveddecision. Defendant renewed his motion at the conclusion of all the evidence, and thecourt again reserved decision. There is no indication in the record that the court ruled ondefendant's motion. We do not address defendant's contention because, "in accordancewith People v Concepcion(17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470,474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court'sfailure to rule on the . . . motion as a denial thereof" (People v Moore, 147 AD3d1548, 1548 [4th Dept 2017] [internal quotation marks omitted]; see People v White, 134 AD3d1414, 1415 [4th Dept 2015]; see generally People v Spratley, 96 AD3d 1420, 1421 [4thDept 2012]). We therefore hold the case, reserve decision, and remit the matter toSupreme Court for a ruling on defendant's motion (see Moore, 147 AD3d at1548; White, 134 AD3d at 1415).
Finally, we note—as the People correctly concede—that theindeterminate term of incarceration imposed on the criminal possession of a weapon inthe third degree counts is illegal (see Penal Law §§ 70.02 [1][c]; 265.02 [8]; People vGoston, 9 AD3d 905, 907 [4th Dept 2004], lv denied 3 NY3d 706[2004]). Present—Smith, J.P., Carni, Lindley, Curran and Troutman, JJ.