| People v Kabia |
| 2021 NY Slip Op 00209 [190 AD3d 1105] |
| January 14, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Ahzallam Kabia, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Carter, J.),rendered February 15, 2018, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the second degree.
In April 2017, police officers with the City of Albany Police Department initiated a trafficstop of a vehicle in which defendant was a passenger. A sawed-off shotgun was ultimatelydiscovered inside the vehicle, which led to the discovery of a shotgun shell on defendant'sperson. Defendant was consequently indicted on the charge of criminal possession of a weaponin the second degree. Defendant unsuccessfully moved to suppress the physical evidence foundin the vehicle and on his person and, after a jury trial, was convicted as charged. County Courtsentenced defendant to a prison term of 10 years, followed by five years of postreleasesupervision. Defendant appeals.
Defendant argues that the verdict is not supported by legally sufficient evidence and isagainst the weight of the evidence. However, defendant's legal sufficiency challenge is notpreserved for our review, as his trial motion to dismiss did not include the arguments he nowraises on appeal (see e.g. People vDelbrey, 179 AD3d 1292, 1292 [2020], lv denied 35 NY3d 969 [2020]; People v Van Alphen, 167 AD3d1076, 1077 [2018], lv denied 32 NY3d 1210 [2019]). Nevertheless, as part of ourweight of the evidence review, we necessarily determine whether the People proved each elementof the crime charged beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Chaneyfield, 157 AD3d996, 996 [2018], lv denied 31 NY3d 1012 [2018]). As relevant here, a person isguilty of criminal possession of a weapon in the second degree when he or she knowinglypossesses a loaded and operable firearm outside of his or her home or place of business(see Penal Law § 265.03 [3]). The discovery of a firearm within a vehiclegives rise to a permissive presumption that the firearm was knowingly possessed by all personsin the vehicle at the time of its discovery (see Penal Law § 265.15 [3]; People v Smith, 177 AD3d 1190,1190 [2019], lv denied 34 NY3d 1163 [2020]; People v Sostre, 172 AD3d 1623, 1625-1626 [2019], lvdenied 34 NY3d 938 [2019]).
The trial evidence established that a vehicle in which defendant was a passenger was stoppedby police for, among other things, bearing a license plate that did not match the vehicle.Testimony, as well as video footage of the traffic stop, revealed that defendant—who wasseated in the rear passenger seat—bent over to the left after the police initiated the trafficstop. As established by the evidence, a sawed-off shotgun was ultimately discovered under therear portion of the driver's seat and a shotgun shell was thereafter located on defendant's person,in the left pocket of his pants. The evidence demonstrated that the shotgun was loaded andoperable and that the shell in the shotgun was of the same caliber and make as [*2]the shell found on defendant's person. Defendant argued at trial thathe was intoxicated and unaware of the shotgun's presence in the vehicle and that the policeplanted the shotgun shell on his person. Given this defense, as well as the permissive nature ofthe automobile presumption, it would not have been unreasonable for the jury to have reached adifferent verdict. However, the jury rejected the defense and when we view the evidence in aneutral light and defer to the jury's credibility determinations, we find that the verdict is amplysupported by the weight of the evidence (see People v Kalabakas, 183 AD3d 1133, 1141-1142 [2020], lvdenied 35 NY3d 1067 [2020]; People v Smith, 177 AD3d at 1191).
Defendant also challenges the denial of his motion to suppress the physical evidence found inthe vehicle and on his person. In denying the motion, County Court found that the shotgun shellwas discovered on defendant's person during a limited protective pat-down search of defendant,which then provided law enforcement with probable cause to search the vehicle. However, thisfinding is not supported by the evidence presented at the suppression hearing, whichdemonstrated that the search of the vehicle actually preceded the search of defendant's person anddiscovery of the shotgun shell. Although the People raised other arguments that could potentiallyjustify the search of the vehicle and defendant's person, this Court is statutorily restricted fromconsidering issues not ruled upon by the trial court (see CPL 470.15 [1]; People vLaFontaine, 92 NY2d 470, 473-474 [1998]; People v Allen, 132 AD3d 1156, 1158 [2015], lv denied 26NY3d 1107 [2016]). We are therefore constrained to reverse the denial of defendant'ssuppression motion. Accordingly, we will hold the appeal in abeyance and remit the matter toCounty Court to review the evidence presented at the suppression hearing, consider any alternatebases to suppress the physical evidence and render a new determination on defendant's motion(see People v Grimes, 181 AD3d1251, 1253 [2020]; People vChazbani, 144 AD3d 836, 838-840 [2016]; People v Rollins, 125 AD3d 1540, 1542 [2015]).
Lynch, J.P., Mulvey, Pritzker and Colangelo, JJ., concur. Ordered that the decision iswithheld, and matter remitted to the County Court of Albany County for further proceedings notinconsistent with this Court's decision.