| People v Almodovar |
| 2020 NY Slip Op 02568 [183 AD3d 1243] |
| May 1, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Hermes A. Almodovar, Appellant. |
Tully Rinckey PLLC, Rochester (Zachary T. Ruetz of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Judith A. Sinclair,J.), rendered June 15, 2016. The judgment convicted defendant upon a jury verdict ofattempted criminal possession of a weapon in the second degree and menacing in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of attempted criminal possession of a weapon in the second degree (Penal Law§§ 110.00, 265.03 [3]) and menacing in the second degree(§ 120.14 [1]), arising from his possession of a firearm and hisconfrontation with the father of a child regarding a prior incident that occurred less thana week before in which defendant purportedly tried to remove the child from herpreschool when he had no authorization to do so. We affirm.
Defendant contends that Supreme Court erred in refusing to sever the counts of theindictment relating to the confrontation from a count charging him with attemptedkidnapping in the second degree (Penal Law §§ 110.00,135.20)—of which he was ultimately acquitted—relating to the priorincident. We reject that contention. Where counts of an indictment are properly joinedbecause "either proof of the first offense would be material and admissible as evidence inchief upon a trial of the second, or proof of the second would be material and admissibleas evidence in chief upon a trial of the first" (CPL 200.20 [2] [b]), the trial court has nodiscretion to sever counts pursuant to CPL 200.20 (3) (see People v Bongarzone,69 NY2d 892, 895 [1987]; People v Lane, 56 NY2d 1, 7 [1982]). Here, weconclude that the counts were properly joined pursuant to CPL 200.20 (2) (b), and thusthe court "lacked statutory authority to grant defendant's [severance] motion" (People v Murphy, 28 AD3d1096, 1097 [4th Dept 2006], lv denied 7 NY3d 760 [2006]).
Defendant further contends that the court erred in refusing to suppress hisinculpatory statements to the police because those statements were not voluntarily made.We conclude that defendant's contention lacks merit. Here, in light of the totality of thecircumstances, the People proved beyond a reasonable doubt that the statements "werenot products of coercion but rather were the result of a free and unconstrained choice bydefendant" (People vBuchanan, 136 AD3d 1293, 1294 [4th Dept 2016], lv denied 27 NY3d1129 [2016] [internal quotation marks omitted]; see People v Thomas, 22 NY3d 629, 641 [2014]; People v Clyburn-Dawson, 128AD3d 1350, 1351 [4th Dept 2015], lv denied 26 NY3d 966 [2015]).
We reject defendant's additional contention that the identification procedures used bythe police, i.e., photo arrays and a showup by which he was identified as the perpetrator,were unduly suggestive. Contrary to defendant's contention with respect to the photoarray procedures, the court properly determined that "the subtle differences in thephotographs . . . were not 'sufficient to create a substantial likelihood thatthe defendant would be singled out for identification' " (People v Lee, 96NY2d 157, 163 [2001], quoting People v Chipp, 75 NY2d 327, 336 [1990],cert denied 498 US 833 [1990]). With respect to the showup identificationprocedure, the court properly determined that the People met their initial burden ofestablishing "the reasonableness of the police conduct and the lack of any unduesuggestiveness" and that defendant failed to meet his ultimate burden of establishing thatthe showup identification procedure was unduly suggestive (Chipp, 75 NY2d at335).
Finally, we reject defendant's challenge to the legal sufficiency of the evidencesupporting the conviction of attempted criminal possession of a weapon in the seconddegree. Although there is no dispute that the firearm at issue was not operable, "it is wellsettled that a defendant may be convicted of attempted criminal possession of a weaponwhen he or she believes that the firearm is operable" (People v Boyd, 153 AD3d 1608, 1609 [4th Dept 2017],lv denied 30 NY3d 1103 [2018]; see Matter of Lavar D., 90 NY2d 963,965 [1997]; People v Saunders, 85 NY2d 339, 342 [1995]). Here, defendant'sstatements to the police established that he was aware that the father of the child waslooking for him as a result of the prior incident at the preschool, which made defendantscared and galvanized him to purchase a firearm from a man on a dead-end street; thatthe firearm was loaded with a bullet; and that defendant did not examine the firearm anddetermine its inoperability until after subsequently returning home. Moreover, thefirearms examiner testified that the firearm was inoperable due to a missing firing pin,which was not readily apparent from merely looking at the firearm. Contrary todefendant's contention, we conclude that such evidence is sufficient " 'to supportthe inference that [defendant] believed and intended the firearm to be operable' "when he purchased and possessed it before returning home (Boyd, 153 AD3d at1609; see Lavar D., 90 NY2d at 965). Present—Whalen, P.J., Centra,Peradotto, Winslow and Bannister, JJ.