| People v Damon |
| 2021 NY Slip Op 07034 [200 AD3d 1323] |
| December 16, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Alvin Damon, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered March8, 2019 in Albany County, upon a verdict convicting defendant of the crimes of criminalpossession of a weapon in the second degree and menacing a police officer or peace officer.
In June 2018, police officers approached defendant who they believed was involved in anApril 2018 shooting. Defendant fled, and a foot pursuit ensued. During the pursuit, defendantused a bystander as a shield and drew a handgun. After a detective drew his gun in response,defendant threw his handgun to the ground. Defendant was subsequently subdued, and a handgunwas recovered. As a result of this incident, defendant was charged by indictment with criminalpossession of a weapon in the second degree and menacing a police officer or peace officer. Ajury trial was held, after which defendant was convicted as charged. Supreme Court sentenceddefendant to concurrent prison terms, the greatest of which was 10 years, to be followed by fiveyears of postrelease supervision. Defendant appeals. We affirm.
Defendant contends that the verdict was against the weight of the evidence.[FN*] As to the count chargingdefendant with criminal possession of a weapon in the second degree, the People were obligatedto prove beyond a reasonable doubt that defendant possessed a loaded firearm (see PenalLaw § 265.03 [3]). As relevant here, menacing a police officer or peace officerrequires that the People prove beyond a reasonable doubt that defendant "intentionally place[d]or attempt[ed] to place a police officer . . . in reasonable fear of physical injury,serious physical injury or death by displaying a deadly weapon, . . . pistol, revolver. . . or other firearm, whether operable or not, where such officer was in the courseof performing his or her official duties and . . . defendant knew or reasonably shouldhave known that such victim was a police officer" (Penal Law § 120.18).
The trial testimony establishes that a detective with the Albany Police Department, as well asother law enforcement officials, approached defendant in connection with an investigation of anApril 2018 shooting. The detective testified that, in response, defendant fled from his porchwhere he was sitting. Defendant was seen putting his hand into his waistband before running.The detective pursued defendant, during which defendant grabbed an individual, spun theindividual toward him like a shield and drew a handgun. The detective drew his firearm and tolddefendant, "Don't do it. Let me see your hands." The detective was concerned that defendantwould start shooting at him, but defendant instead threw his handgun on the ground. Anotherofficer testified similarly to the detective's account of the events and also stated that he securedthe handgun dropped by defendant. The recovered handgun was test-fired and was deemedoperable.
Regarding the conviction of criminal possession of a weapon in the second degree, a [*2]contrary result would have been unreasonable in view of theconsistent testimony from multiple witnesses that defendant drew a handgun after fleeing fromlaw enforcement officials and the evidence demonstrating that the handgun was operable (compare People v Ruffin, 191 AD3d1174, 1178 [2021], lv denied 37 NY3d 960 [2021]). For this reason, defendant'sargument that the menacing a police officer or peace officer conviction was not supported by theweight of the evidence because there was no evidence showing that defendant possessed ahandgun is without merit. Accordingly, the verdict will not be disturbed on this basis.
Defendant argues that Supreme Court erred in granting the People's application to reopentheir case after the parties had rested. In particular, the purpose of reopening was to allow thePeople to submit a special information alleging that defendant was previously convicted ofcriminal mischief in the fourth degree in order to show that such conviction rendered the home orbusiness exception provided in Penal Law § 265.03 (3) inapplicable. According todefendant, the People were required to tender such proof as part of their case-in-chief withrespect to the weapon possession charge. Contrary to defendant's assertion, however, "where [a]defendant has a previous conviction, the [home or business] exception never comes into play[and] its inapplicability is not an element of the offense" (People v Jones, 22 NY3d 53, 60 [2013]).
Supreme Court nonetheless permitted the People to reopen their case to submit evidence ofdefendant's prior conviction. Even assuming that the People were obligated to prove theinapplicability of the home or business exception as part of their case-in-chief," 'reopening is permissible where the missing element is simple to prove and notseriously contested, and reopening the case does not unduly prejudice the defense' " (People v Kinney, 66 AD3d 1238,1240 [2009], quoting People v Whipple, 97 NY2d 1, 3 [2001]). Whether defendant had aprior conviction was simple to prove. Defendant was given the option of admitting to the priorconviction or having the People offer evidence to prove it, with defendant choosing the latter.Defendant also recognized there was no prejudice in permitting the People to reopen their case.As such, the court properly granted the People's application (cf. People v Edwards, 148AD2d 746, 747 [1989], lv denied 74 NY2d 808 [1989]).
Defendant challenges Supreme Court's Molineux ruling permitting the People tooffer into evidence a video depicting defendant as being involved in an April 2018 shooting butnot being the shooter. "Courts must determine as a matter of law whether the evidence isrelevant, material and admissible under a Molineux exception or some other basis; afterthis initial determination, admissibility turns on a case-specific discretionary balancing of probityversus prejudice" (People vWesterling, 48 AD3d 965, 966 [2008] [citations omitted]; see People v Smith, 157 AD3d978, 979-980 [2018], lv denied 31 NY3d 1087 [2018]; People v McCommons, 143 AD3d1150, 1153 [2016], lv denied 29 NY3d 999 [2017]). The court correctly concludedthat the video evidence was relevant to the issue of defendant's access to the handgun (see People v Nunes, 168 AD3d1187, 1192 [2019], lv denied 33 NY3d 979 [2019]; People v Wells, 141 AD3d 1013,1019 [2016], lv denied 28 NY3d 1189 [2017]). The probative value of this video,however, did not outweigh the potential prejudice to defendant. The video depicted a shooterknocking on a door in broad daylight, brandishing a handgun and then firing it multiple times.Defendant was not the shooter but was clearly present with him at the time of this shooting.Accordingly, even with limiting instructions, the video should not have been admitted (see People v Scaringe, 137 AD3d1409, 1417 [2016], lv denied 28 NY3d 936 [2016]). Notwithstanding the foregoing,any error in Supreme Court's Molineux ruling was harmless. There was overwhelmingevidence of defendant's guilt, and no significant probability exists that defendant would havebeen acquitted but for this error (seePeople v Williams, 156 AD3d 1224, 1230 [2017], lv denied 31 NY3d 1018[2018]; People v Anderson, 149AD3d 1407, 1412 [2017], lv denied 30 NY3d 947 [2017]).
Defendant argues that he received the ineffective assistance of counsel. The litany ofgrievances alleged by defendant, however, either concern trial strategies, for which defendantfailed to demonstrate the absence of strategic or other legitimate explanations (see People v Cowan, 177 AD3d1173, 1178 [2019], lv denied 34 NY3d 1127 [2020]; People v Vargas, 72 AD3d 1114,1119 [2010], lv denied 15 NY3d 758 [2010]), or the failure to make arguments thatwould have had little chance of success (see People v Leonard, 177 AD3d 1158, 1163 [2019], lvdenied 34 NY3d 1160 [2020]). The record discloses that counsel made cogent opening andclosing statements, engaged in pretrial motion practice, vigorously cross-examined the People'switnesses and raised successful objections. Accordingly, defendant's ineffective assistance ofcounsel argument is unavailing (seePeople v Hilton, 185 AD3d 1147, 1151 [2020], lv denied 35 NY3d 1095 [2020];People v Horton, 181 AD3d986, 998 [2020], lv denied 35 NY3d 1045 [2020]).
As to the imposed sentence, a sentence falling within the statutory parameters may bemodified where an abuse of discretion or extraordinary circumstances exists (see People v Hightower, 186 AD3d926, 932 [2020], lv denied 35 NY3d 1113 [2020]). The record reflects that neither ispresent and, therefore, the sentence will not be disturbed (see People v Gunn, 144 AD3d 1193, 1196 [2016], lv denied28 NY3d 1145 [2017]; People v Dolphy, 257 AD2d 681, 685 [1999], lv denied93 NY2d 872 [1999]). Lastly, the mere fact that the imposed sentence was greater than what wasoffered in a pretrial plea offer does not render the sentence harsh or excessive[*3] (see People v Fullard, 233 AD2d 757, 759 [1996], lvdenied 89 NY2d 1092 [1997]). Defendant's remaining contentions have been considered andare without merit.
Garry, P.J., Egan Jr., Pritzker and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent that defendantcontends that the verdict was not supported by legally sufficient evidence, such contention isunpreserved given that defendant failed to renew his trial motion to dismiss after Supreme Courtgranted the People's application to reopen their case-in-chief and the People submitted additionalproof (see generally People v Lane,7 NY3d 888 [2006]).