| People v Ruffin |
| 2021 NY Slip Op 01163 [191 AD3d 1174] |
| February 25, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Earnest T. Ruffin, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered March 28, 2019, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree, criminal possession of a weapon in the third degreeand criminal mischief in the fourth degree and the violation of unlawful possession ofmarihuana.
In January 2018, police responded to a 911 call placed by the victim, who reported thatdefendant had kicked in her apartment door and may have been armed with a weapon. Uponresponding to the scene, police apprehended defendant and seized a duffel bag from a stairwellnear the victim's apartment, which contained, among other things, various types of ammunition, aSpringfield Armory handgun and a black Mossberg shotgun. In connection therewith, defendantwas charged by indictment with burglary in the second degree (count 1), criminal possession of aweapon in the second degree (count 2), criminal possession of a weapon in the third degree(count 3), criminal possession of a weapon in the fourth degree (count 4), criminal mischief inthe fourth degree (count 5) and unlawful possession of marihuana (count 6).[FN1] Defendant moved to suppress theevidence seized from the duffel bag and requested a Mapp/Dunaway hearing to determinethe admissibility thereof. County Court summarily denied defendant's motion, finding that hefailed to assert any expectation of privacy in the duffel bag that would entitle him to a hearing onthe issue. Thereafter, County Court partially granted the People's Sandoval andMolineux proffers, allowing them to submit certain evidence regarding defendant's priorconvictions, statements he had made on telephone calls while incarcerated pending trial andphotographs seized from his cell phone.
Defendant's first trial ended in a mistrial and he was retried on the charges in January 2019.County Court's Sandoval and Molineux rulings were incorporated into the retrialand defendant admitted on the record that he had previously been convicted of manslaughter inthe first degree (see Penal Law § 125.20 [1]). Following completion of theretrial, defendant was acquitted of count 1 and convicted of counts 2, 3, 5 and 6.[FN2] He was sentenced, as a secondviolent felony offender, to a prison term of 15 years, with five years of postrelease supervision,upon the conviction of criminal possession of a weapon in the second degree and to lesserconcurrent terms of incarceration or time served on the remaining convictions.[FN3] Defendant appeals.
Defendant contends that the verdict on counts 2 and 3 of the indictment—chargingcriminal possession of a weapon in the second and third degrees—is against the weight ofthe evidence because the People failed to prove that he had knowledge of the handgun found inthe duffel bag or that he had constructive possession of it. We disagree. When conducting aweight of the evidence review, we must "view the evidence in a neutral light and determine [*2]first whether a different verdict would have been unreasonable and,if not, [then] weigh the relative probative force of conflicting testimony and the relative strengthof conflicting inferences that may be drawn from the testimony to determine if the verdict issupported by the weight of the evidence" (People v Caden N., 189 AD3d 84, 89 [2020] [internal quotationmarks and citations omitted]; see Peoplev Callahan, 186 AD3d 943, 943-944 [2020]).
As relevant here, "[a] person is guilty of criminal possession of a weapon in the seconddegree when . . . such person possesses any loaded firearm" (Penal Law§ 265.03 [3]).[FN4] A "[l]oaded firearm" includes "any firearmloaded with ammunition or any firearm which is possessed by one who, at the same time,possesses a quantity of ammunition which may be used to discharge such firearm" (Penal Law§ 265.00 [15]). A person is guilty of criminal possession of a weapon in the thirddegree when, as relevant here, "he or she knowingly possesses any firearm and has beenpreviously convicted of any crime" (People v McCoy, 169 AD3d 1260, 1262 [2019], lv denied33 NY3d 1033 [2019]; see Penal Law §§ 265.01 [1]; 265.02 [1]). Forboth counts, "the term 'firearm' means any operable pistol or revolver" (People v McCoy,169 AD3d at 1262; see Penal Law § 265.00 [3]; People vLongshore, 86 NY2d 851, 852 [1995]).
The possession element of such crimes "includes the Penal Law definitional component of'[v]oluntary act,' which incorporates the attribute of awareness of the possession or control"(People v Saunders, 85 NY2d 339, 341 [1995], quoting Penal Law § 15.00[2]; see People v J.L., 36 NY3d112, 119 [2020]). Possession is voluntary when the defendant possesses the weapon "for asufficient period to have been able to terminate the possession" (People v J.L., 36 NY3dat 122 [internal quotation marks, emphasis and citation omitted]). The People may proceed upona theory of constructive possession, which requires proof that the "defendant exercised dominionand control over the contraband or the area where the contraband was found" (People v Dawson, 110 AD3d1350, 1352 [2013] [internal quotation marks, brackets and citations omitted], lvdenied 23 NY3d 1035 [2014]; see People v McCoy, 169 AD3d at 1262).
At trial, the People entered into evidence the victim's 911 call pertaining to the incident. Onthe call, the victim stated that her "boyfriend [had] just broke[n] [her] door open" and had pushedher to the floor, prompting her to leave her apartment. She explained that she was sitting in hercar at the time of the call, identified her boyfriend as defendant, and relayed her concern thatdefendant had a weapon "in his bag," stating that she was "just go[ing to] drive [be]cause if he[had] a gun [she] [didn't] want him to shoot near [her] car." A neighbor of the victim testifiedthat, upon hearing a commotion outside of her apartment, she looked through the peephole of herfront [*3]door and, as relevant here, observed a man leaving thevictim's apartment with a "black big bag." According to the neighbor, the man went downstairswith the bag, placed it down and stood by it.
State Trooper Kyle Conlon arrived on the scene as the incident was still unfolding andobserved the victim inside of a parked SUV pointing at a man who matched the description ofher boyfriend as relayed in the 911 call. Conlon observed the man "walking off the steps or thestoop area . . . towards the sidewalk" and away from an area that contained a dufflebag, explaining that the victim was "pointing at [the man] in relation to the bag." After thatindividual was apprehended, a pat-down search of his person yielded, among other things, adriver's license bearing defendant's name, as well as a small amount of marihuana and a skimask. Police officers later confirmed that the individual apprehended was defendant.
Police located a black duffel bag on the steps outside of the apartment complex, whichcontained clothing, sneakers, two masks in the shape of skulls (one of which was silver in colorand the other blue), ammunition, a handgun magazine, a Springfield Armory XD 40 handgun anda Mossberg shotgun. Multiple police officers testified that, from the time they located the duffelbag until the time that defendant was placed under arrest, they did not observe any other civiliansin the vicinity of the bag. The victim's neighbor also testified to that affect. Forensic analysis ofthe items found in the bag did not reveal any identifiable fingerprints or DNA evidence, otherthan indicating that male DNA was present on the grip of the handgun and on one of the masks.Police later identified the ammunition contained in the bag as 9 millimeter and .40 caliberrounds. Although the handgun was not loaded with ammunition when it was found, an expertwho test-fired it using the ammunition located in the duffel bag confirmed that it was operable.Moreover, a sergeant with the State Police Pistol Permit Unit explained that a pistol permit isrequired to carry a Springfield Armory handgun in New York and that no such permit had beenissued in defendant's name.
The People also entered into evidence audio recordings of certain telephone calls thatdefendant had placed while incarcerated pending trial, during which he expressed knowledge ofthe duffel bag and the contents located therein. To that end, defendant asked his sister on one ofthe calls, "what happened to the duffel bag?" On another call, he informed his sister that therewas "one silver and one blue" mask located in the bag. Moreover, defendant confirmed on othercalls that the "guns" were not loaded at the time of his arrest, and that "only one gun is reallyillegal" and "the other one is a Mossberg." At trial, defendant's sister confirmed that certainpersonal items found in the bag belonged to defendant, including a belt, deodorant and sneakers.The People also entered into evidence pictures [*4]extracted fromdefendant's cellular phone, which were taken prior to the incident, depicting blue and silver skullmasks as well as a handgun that appeared to have the "Springfield Armory" emblem engrainedon it.
A different verdict would not have been unreasonable insofar as no witness saw defendantphysically possessing the duffel bag or handgun located therein and given the lack of forensicevidence directly linking defendant to the handgun (see People v Sloley, 179 AD3d 1308, 1310 [2020], lvdenied 35 NY3d 974 [2020]; Peoplev Cherry, 149 AD3d 1346, 1347 [2017], lv denied 29 NY3d 1124 [2017]).Nevertheless, when weighing the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn therefrom, we conclude that the Peopleproved beyond a reasonable doubt that defendant knowingly and voluntarily possessed theoperable handgun found in the duffel bag and that the verdict on counts 2 and 3 of the indictmentis not against the weight of the evidence (see People v Sloley, 179 AD3d at 1310;People v McCoy, 169 AD3d at 1263-1264).[FN5]
Contrary to defendant's contention, County Court did not abuse its discretion in summarilydenying his motion for a pretrial Mapp/Dunaway hearing. A request for a suppressionhearing "may be summarily denied if the motion papers do not provide a sufficient legal basis forsuppression" (People v Burton, 6NY3d 584, 587 [2006]; see CPL 710.60 [3] [a]). A defendant who seeks suppressionof physical evidence has " 'the initial burden of showing sufficient grounds for themotion based on sworn allegations of fact' and 'such grounds necessarily include a showing ofstanding' " (People v Jones,155 AD3d 1103, 1105 [2017], lv denied 30 NY3d 1106 [2018], quoting People vWesley, 73 NY2d 351, 358-359 [1989]). "Standing to challenge a search is not establishedby asserting a possessory interest in the goods seized—[the] defendant must assert aprivacy interest in the place or item searched" (People v Ramirez-Portoreal, 88 NY2d 99,109 [1996] [citation omitted]). "Where, as here, criminal charges are predicated on ordinaryconstructive possession principles, standing is available only if the defendant demonstrates apersonal legitimate expectation of privacy in the searched [area]" (People v Jones, 155AD3d at 1105 [internal quotation marks, emphasis and citations omitted]).
In his written motion, defendant sought suppression of the items found in the duffel bag onthe basis that they were unlawfully seized "as a result of police conduct in violation of [his]substantial right to be secure against unreasonable searches and seizures." Although he assertedvarious grounds in support of suppression, he did not allege any facts supporting a reasonableexpectation of privacy in the duffel bag, which was partially open when it was found and locatedin a common area. As defendant did not demonstrate standing to challenge the search, CountyCourt did not err in summarily [*5]denying his motion (seePeople v Jones, 155 AD3d at 1105; People v Farley, 184 AD2d 726, 727 [1992],lv denied 81 NY2d 762 [1992]).
Nor did County Court abuse its discretion in admitting into evidence certain photographsseized from defendant's cellular phone. "Unless photographs lack probative value and arepresented solely for the purpose of inflaming a jury, they are admissible in a criminal trial,particularly where they tend to support a material issue or corroborate other evidence in the case"(People v Molineaux, 156 AD3d1250, 1252 [2017] [internal quotation marks and citations omitted], lv denied 31NY3d 1085 [2018]; see People v Pobliner, 32 NY2d 356, 370 [1973], cert denied416 US 905 [1974]). "Once a relevant purpose for a photograph is demonstrated, the question ofwhether the probative value of the photograph outweighs any prejudice to the defendant restswithin the trial court's sound discretion" (People v Brinkley, 174 AD3d 1159, 1165 [2019] [citation omitted],lv denied 34 NY3d 979 [2019]). The photographs from defendant's cell phone were notinflammatory in nature, were directly relevant to establishing his ownership and control over thevarious contents of the bag, and their probative value outweighed any risk of undue prejudice(see People v Brinkley, 174 AD3d at 1165; People v Silva, 135 AD3d 498, 498 [2016], lv denied 28NY3d 936 [2016]). Moreover, County Court gave an appropriate limiting instruction with regardto evidence of the uncharged Mossberg, stating that "[p]ossession of the Mossberg firearm is nota crime [in New York]" and evidence relating to the Mossberg "must not be considered for thepurpose of proving that . . . defendant had a propensity . . . to committhe crimes charged," but was instead being offered as evidence "on the question of identity,ownership, and possession of the contents of the . . . bag." We are satisfied that thislimiting instruction dissipated any prejudice to defendant from admission of the photograph ofthe Mossberg.
Defendant's challenge to County Court's Sandoval ruling is also unavailing. CountyCourt ruled that, if defendant chose to testify at trial, the People would be permitted to introduceevidence that he had been convicted of a prior unspecified felony and two prior robberies, but notabout the underlying facts of the crimes. These convictions were probative of defendant'scredibility and willingness to put his interests above those of society. Although these convictionswere temporally remote—having occurred between 1995 and 1998—the courtnoted that defendant had been incarcerated for 24 of the last 27 years. Notably, the recordestablishes that defendant was incarcerated from his last conviction in 1998 until March 2017,meaning that he had been at liberty for approximately 10 months before the instant offense.Under these circumstances, and considering the court's decision to preclude inquiry into theunderlying facts of the convictions, we discern no abuse [*6]ofdiscretion (see People v Delbrey,179 AD3d 1292, 1296 n 2 [2020], lv denied 35 NY3d 969 [2020]; compare People v Cole, 177 AD3d1096, 1100 [2019], lv denied 34 NY3d 1015 [2019]).
County Court also did not abuse its discretion in permitting the People to play the victim's911 call at trial. Contrary to defendant's contention, even though the victim did not testify on theretrial, admission of the 911 call did not violate his right of confrontation under Crawford vWashington (541 US 36 [2004]), as "statements made in response to police inquiries for theprimary purpose of enabling them to meet an ongoing emergency, rather than for providingevidence for a later prosecution, are deemed to be nontestimonial in nature and, thus, do notviolate the Confrontation Clause" (People v Haskins, 121 AD3d 1181, 1184-1185 [2014], lvdenied 24 NY3d 1120 [2015]; seePeople v Nieves-Andino, 9 NY3d 12, 14-15 [2007]). Moreover, County Court properlydetermined that the victim's statements on the call were admissible under the hearsay exceptionsfor present sense impressions and excited utterances. During portions of the call, the victimspontaneously described some of defendant's movements and actions in real time and herdescriptions were generally corroborated by independent evidence. Such statements constitutedpresent sense impressions (see People vJones, 28 NY3d 1037, 1039 [2016]; People v Brown, 80 NY2d 729, 733-734[1993]).
The victim's statements on the call also fell within the excited utterance exception to thehearsay rule. Although the victim's tenor and demeanor did not appear overly frantic, sheexplained to the dispatcher that she had removed herself from defendant's presence and retreatedto her car in response to defendant kicking her door in and pushing her to the floor. She alsorelayed her fear that defendant was armed with a weapon. The dispatcher who received thevictim's 911 call relayed his opinion that she sounded "very excited" and "very nervous" when hespoke to her. After considering the victim's statements on the 911 call and the circumstancesprompting her to leave her residence, we are satisfied that the victim's call was made "under thestress and excitement of a startling event and [was] not the product of any reflection and possiblefabrication" (People v Haskins, 121 AD3d at 1184 [internal quotation marks omitted]; see People v Johnson, 1 NY3d302, 306 [2003]; People v Prashad, 297 AD2d 352, 352 [2002], lv denied 99NY2d 563 [2002]). Although there was a brief break in time from when the victim removedherself from defendant's presence and when she placed the call, "the psychological and emotionaleffect of [a] sudden event may persist and continue to operate with undiminished force for aperiod of time thereafter" (People v Brown, 70 NY2d 513, 521 [1987]). A police officerwho encountered the victim sitting in her vehicle when he arrived at the scene described her as"obviously nervous," noting that she was "sweating[*7]" and had"hand tremors" and "shortness of breath." Accordingly, County Court did not abuse its discretionin admitting into evidence the 911 call.
We are also unpersuaded by defendant's argument that County Court committed reversibleerror in granting the People's request for a curative instruction in response to defense counsel'sstatement during summation that the People had failed to call the victim to testify. Counsel isgenerally afforded "wide latitude" on summation (People v Rupnarine, 140 AD3d 1204, 1205 [2016]) and "[a]defendant not necessarily entitled to a missing witness charge may nonetheless try to persuadethe jury to draw inferences from the People's failure to call an available witness withmaterial, noncumulative information about the case" (People v Williams, 5 NY3d 732, 734 [2005] [emphasis added];see People v Tankleff, 84 NY2d 992, 994-995 [1994]). Here, however, the victim wasunavailable to testify for them on the retrial[FN6] and, therefore, County Court did not err ininstructing the jury—in response to defense counsel's summation noting the victim'sabsence—that it "must not draw any inference favorable or unfavorable to either side fromthe fact that the victim was not called as a witness in the case" (see People v Wood, 245AD2d 200, 201 [1997], lv denied 91 NY2d 946 [1998]; People v Parks, 237AD2d 105, 105 [1997], lv denied 90 NY2d 862 [1997]; People v Ramirez, 221AD2d 178, 179 [1995], lv denied 87 NY2d 1023 [1996]). In any event, we would findthat any error in giving the curative instruction was harmless in light of the overwhelming proofof defendant's guilt (see People vMcCollough, 16 AD3d 183, 184 [2005], lv denied 4 NY3d 855 [2005]; compare People v Williams, 5 NY3d732, 735 [2005]).
We also reject defendant's assertion that he was deprived of the effective assistance ofcounsel. Although defendant takes issue with counsel's failure to secure aMapp/Dunaway hearing, he did not demonstrate that counsel lacked a strategic reason forthe manner in which he crafted the written suppression motion (see People v Santana, 179 AD3d1299, 1302 [2020], lv denied 35 NY3d 973 [2020]), and "[t]here can be no denial ofeffective assistance of trial counsel arising from counsel's failure to make [an] argument that haslittle or no chance of success" (People vCaban, 5 NY3d 143, 152 [2005]). Here, the bag was located on a common stairwell andwas partially open at the time it was found, thereby negating any reasonable expectation ofprivacy (see People v Febo, 167AD3d 451, 452 [2018], lv denied 33 NY3d 948 [2019]). Moreover, defensecounsel's purported advice to defendant not to testify "implicates strategic discussions betweendefendant and counsel that are dehors the record . . . [and] unreviewable on directappeal" (People v Sanders, 289 AD2d 101, 101 [2001], lv denied 97 NY2d 760[2002]). Nor was counsel ineffective in failing to request a missing witness charge pertaining tothe People's failure to call the [*8]victim to testify, as thecircumstances surrounding her absence made it highly unlikely that such a request would havebeen successful (see People v Caban, 5 NY3d at 152; People v Smith, 157 AD3d 978, 982 [2018], lv denied 31NY3d 1087 [2018]). As the record demonstrates that counsel "presented a clear trial strategy,effectively cross-examined witnesses and made appropriate opening and closing statements," weare satisfied that defendant was provided with meaningful representation (People vSantana, 179 AD3d at 1302; seePeople v Seecoomar, 174 AD3d 1154, 1158 [2019], lv denied 34 NY3d 1019[2019]).
Finally, we reject defendant's contention that the sentence imposed was harsh and excessive.The five-year disparity between the pretrial plea offer and the sentence ultimately imposed doesnot support defendant's assertion that he was penalized for asserting his right to trial (see People v Martinez, 26 NY3d196, 200 [2015]; compare People v Cosme, 203 AD2d 375, 376 [1994]). Givendefendant's prior criminal history for serious charges and the circumstances precipitating theunderlying convictions, we discern no abuse of discretion or extraordinary circumstances thatwould warrant a reduction of the sentence in the interest of justice (see People v Gabriel, 155 AD3d1438, 1442 [2017], lv denied 31 NY3d 1081 [2018]). However, we note that theuniform sentence and commitment form does not reflect defendant's status as a second violentfelony offender, as found by County Court during the sentencing hearing. It should therefore beamended accordingly (see People vSanders, 185 AD3d 1280, 1287-1288 [2020], lv denied 35 NY3d 1115[2020]).
Garry, P.J., Egan Jr., Clark and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed, and matter remitted for entry of an amended uniform sentence and commitmentform.
Footnote 1:None of the weapon possessioncharges related to defendant's possession of the Mossberg, which was not designed to be firedfrom the shoulder and therefore does not constitute a firearm that can be charged under PenalLaw article 265 (see Penal Law § 265.00 [3] [b]; [12]).
Footnote 2:Count 4 of theindictment—charging criminal possession of a weapon in the fourth degree—wasdismissed upon stipulation of the parties following the close of the People's case-in-chief.
Footnote 3:The sentences were ordered torun consecutively to the sentence imposed on a parole violation.
Footnote 4:Although defendant asserts thathe resided at the victim's apartment prior to the underlying incident, the "home exceptionembodied in Penal Law § 265.03 (3), which provides that possession of a loadedfirearm within one's own home generally does not constitute a violation of that subdivision, isinapplicable to defendant, given that he has been previously convicted of a crime" and thefirearm was found outside of the apartment (People v McCoy, 169 AD3d 1260, 1262 n 1 [2019], lvdenied 33 NY3d 1033 [2019]; seePeople v Jones, 22 NY3d 53, 57-59 [2013]; see also Penal Law§ 265.02 [1]).
Footnote 5:The remaining elements of thesecrimes—that defendant had a prior criminal conviction and that the handgun was "loaded"within the meaning of Penal Law § 265.00 (15)—were established throughdefendant's admission that he had previously been convicted of manslaughter in the first degreeand by evidence that ammunition for the handgun was also found in the bag.
Footnote 6:To that end, the victim's attorneyinformed the People of her intent to "refuse to answer any questions" if called to testify at theretrial—as she did during defendant's first trial—and she had been indicted oncriminal contempt charges for refusing to testify during the grand jury proceedings on theunderlying indictment (see generally People v Savinon, 100 NY2d 192, 199 [2003];People v Hernandez, 256 AD2d 18, 19 [1998], lv denied 93 NY2d 874 [1999]).