| People v Hernandez |
| 2020 NY Slip Op 01404 [180 AD3d 1234] |
| February 27, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joseph A. Hernandez, Appellant. |
George P. Ferro, Albany, for appellant, and appellant pro se.
Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Broome County (Dooley,J.), rendered April 5, 2017, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the third degree and criminal possession of a controlledsubstance in the seventh degree.
Defendant was charged by indictment with criminal possession of a weapon in thethird degree and criminal possession of a controlled substance in the seventh degree. Thecharges arose after police officers stopped defendant's vehicle for a traffic stop and thesearch of the vehicle revealed, among other things, a quantity of heroin and a blackjack.Following a jury trial, defendant was convicted as charged and was sentenced to a prisonterm of 2
Defendant asserts that, as to his criminal possession of a weapon conviction, theverdict was not supported by legally sufficient evidence and was against the weight ofthe evidence because the People failed to prove that he knowingly possessed theblackjack. "When considering a challenge to the legal sufficiency of the evidence, weview the evidence in the light most favorable to the People and evaluate whether there isany valid line of reasoning and permissible inferences which could lead a rational personto the conclusion reached by the jury on the basis of the evidence at trial and as a matterof law satisfy the proof and burden requirements for every element of the crime charged"(People v Sostre, 172 AD3d1623, 1625 [2019] [internal quotation marks and citations omitted], lvdenied 34 NY3d 938 [2019]; see People v Small, 174 AD3d 1130, 1131 [2019], lvdenied 34 NY3d 954 [2019]). In contrast, "[w]hen undertaking a weight of theevidence review, we must first determine whether, based on all the credible evidence, adifferent finding would not have been unreasonable and[, if not,] then weigh the relativeprobative force of conflicting testimony and the relative strength of conflictinginferences that may be drawn from the testimony to determine if the verdict is supportedby the weight of the evidence" (People v Creech, 165 AD3d 1491, 1492 [2018] [internalquotation marks and citations omitted]; see People v Gill, 168 AD3d 1140, 1140 [2019]).
To convict defendant of criminal possession of a weapon in the third degree, thePeople had to show that defendant possessed a blackjack and has been previouslyconvicted of any crime (see Penal Law § 265.02 [1]; see also§ 265.01 [1]). Although several of the per se weapons listed in Penal Law§ 265.01 are defined in Penal Law § 265.00, no statutorydefinition is provided for a blackjack. In this circumstance, courts are instructed to "givethe term its usual and commonly understood meaning" (People v Aragon, 28 NY3d125, 128 [2016] [internal quotation marks and citation omitted]), and dictionarydefinitions may serve as useful guideposts (see People v Ocasio, 28 NY3d 178, 181 [2016]). To thatend, a blackjack has been defined as "[a] short bludgeon consisting of a heavy head, as ofmetal, on an elastic shaft or with a flexible handle; a bludgeon-like weapon consisting ofa lead slug attached to a leather thong; a small leather-covered club or billy weighted atthe head and having an elastic shaft" (Black's Law Dictionary 154 [5th ed 1979]).Similarly, a blackjack has been defined as "a hand weapon typically consisting of a pieceof leather-enclosed metal with a strap or springy shaft for a handle" (Merriam-WebsterOnline Dictionary, blackjack [https://www.merriam-webster.com/ dictionary/blackjack])or "a short, thick metal stick covered in rubber or leather, used to hit people" (CambridgeOnline Dictionary, blackjack[https://www.dictionary.cambridge.org/us/dictionary/english/blackjack]).
The evidence at trial revealed that police officers stopped defendant's vehicle fordriving through a red light. Upon approaching the vehicle, police officers detected thesmell of marihuana emanating from the vehicle and observed a marihuana cigarette in thevehicle. The police officers also observed that defendant had a large knife on him;defendant explained that he was bringing the knife with him to his ex-fiancée'shouse because she and her new boyfriend were having problems and his son was there.Defendant was then told to exit the vehicle, was searched and subsequently admitted topossessing marihuana, a bag of heroin and hypodermic needles in the vehicle. One of thepolice officers testified that, during the search of the vehicle, he discovered a suspiciousobject in defendant's backpack. Another police officer immediately identified thediscovered object as a blackjack and described the item as having "a lead core,surrounded by leather, which is flexible and used as a weapon, a blunt object." Theobject was received into evidence. Defendant testified that he was aware that theblackjack was in the vehicle, but did not know that it was illegal or a weapon. He statedthat he worked in the meat industry, had a freezer in his vehicle and used the blackjack tooccasionally break the ice that accumulated in that freezer.
Viewed in a light most favorable to the People, we find that the evidence was legallysufficient to support the conviction of criminal possession of a weapon in the thirddegree. Defendant admitted that he knowingly possessed the blackjack, and the recordshows that he was also aware of its bludgeoning nature as he stated that he used it tobreak other objects (see Penal Law §§ 265.01 [1]; 265.02 [1];People v Parrilla, 27 NY3d400, 405 [2016]). Although a different verdict would not have been unreasonable,the verdict is in accord with the weight of the evidence (see People v Andrade, 172AD3d 1547, 1551 [2019], lv denied 34 NY3d 928 [2019]; People v McCoy, 169 AD3d1260, 1264 [2019], lv denied 33 NY3d 1033 [2019]).
Next, defendant contends that County Court gave improper jury instructionsregarding the criminal possession of a weapon charge. As to the knowledge element ofthe crime, the court stated that this "element relates to . . . defendant'sknowledge of what he was possessing, that is, the nature of the object. There is no legalrequirement that the People must prove beyond a reasonable doubt that . . .defendant knew that the item was termed a blackjack or that it was against the law topossess it." Upon the jury's request during deliberations, the court clarified thatdefendant's conduct satisfies the knowledge element of the crime "[a]s long as [the jury][is] satisfied by proof beyond a reasonable doubt that . . . defendant was inpossession of that item[,] that he was . . . aware that he was in possession ofthat item and . . . what the nature of that object was, and . . .that that object meets the legal definition of what a blackjack is." Contrary to defendant'scontention, the court was not required to instruct the jury that the People were required toshow that defendant was aware of the legal definition of a blackjack. The characteristicsof the blackjack at issue—a lead core, surrounded by leather, which is flexible andused as a weapon—make "the inherently dangerous nature of the prohibited objectbe readily apparent, so as to put [defendant] on clear notice that the object is potentiallysubject to government regulation or prohibition" (People v Wood, 58 AD3d 242, 251 [2008], lvdenied 12 NY3d 823 [2009]; see People v Persce, 204 NY 397, 402 [1912]).Accordingly, the People did not have to prove that defendant was aware of the statutorydefinition of a blackjack to satisfy the knowledge element of criminal possession of aweapon in the third degree (see People v Parrilla, 27 NY3d at 404; comparePeople v Wood, 58 AD3d at 252-253). We similarly reject defendant's contentionthat the court's instruction regarding the level of knowledge required for the commissionof this crime was confusing to the jury. The charge as a whole, as well as the answer tothe jury's question, adequately conveyed to the jury the required standard regarding theknowledge element of the crime (see generally People v Samuels, 99 NY2d 20,25 [2002]; People v Feerick, 93 NY2d 433, 450 [1999]).
Defendant's next contention, that County Court failed to instruct the jury that theobject at issue met the legal definition of a blackjack, is belied by the record. The courtprovided the jury with a definition of a blackjack as "a hand weapon[,] which is typicallya leather-covered club with a springy or flexible handle," and informed the jury that, inorder to find defendant guilty of criminal possession of a weapon in the third degree, ithad to find that the People proved beyond a reasonable doubt that defendant "possessed ablackjack." Although the court did not specify that the jury had to find that the object atissue met the definition of a blackjack, such instruction is implicit, and the jury couldhave reasonably inferred that, in order to find defendant guilty of possessing theblackjack, it had to find that the object possessed by defendant met the legal definition ofa blackjack (see People v Samuels, 99 NY2d at 25; People v Feerick, 93NY2d at 450). Moreover, the court gave an answer to the jury's question that expresslyinformed the jury that it had to find that "that object meets the legal definition of what ablackjack is." In light of the foregoing, we find that the challenged jury instruction wasproper.
Finally, defendant contends that the admission of the contents found in hispossession at the time of his arrest—namely, the hypodermic needles andmarihuana for which he was not charged—was prejudicial and served nolegitimate purpose. However, as defendant concedes, such claim is unpreserved for ourreview in light of defendant's failure to object at the pretrial hearing or at trial (see People v Cayea, 163 AD3d1279, 1280 [2018], lv denied 32 NY3d 1109 [2018]). In any event, were thisissue before us, we would perceive no error because the evidence was part of thenarrative of the search and further buttressed the police officer's credibility in detectingthe odor of marihuana as he approached defendant's vehicle. Defendant's remainingcontentions, to the extent that they are not specifically addressed here, have beenconsidered and found to be without merit.
Egan Jr., J.P., Devine, Aarons and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.