Opinion
668 KA 18–00155
06-28-2019
The PEOPLE of the State of New York, Respondent, v. Frank M. THOMAS, Defendant–Appellant.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (THERESA L. PREZIOSO OF COUNSEL), FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Niagara County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3 ] ). In a prior appeal from a judgment convicting defendant upon his plea of guilty to the lesser-included offense of attempted criminal possession of a weapon in the second degree ( §§ 110.00, 265.03[3] ), we determined that an enhanced sentence had been improperly imposed and we therefore vacated the sentence and remitted the matter to County Court to impose the promised sentence or to afford defendant the opportunity to withdraw his guilty plea ( People v. Thomas , 140 A.D.3d 1615, 1616–1617, 32 N.Y.S.3d 762 [4th Dept. 2016] ). Defendant withdrew his plea and, prior to trial, he moved, inter alia, to dismiss the indictment on the ground that the grand jury proceedings were defective within the meaning of CPL 210.35(5). Specifically, counsel argued that certain instructions "should be given careful consideration," including burden of proof, legally sufficient evidence, reasonable cause and the term "possess," and he now contends, inter alia, that the court erred in refusing to dismiss the indictment. The record, however, is devoid of any ruling on that part of defendant's motion. It is well established that when the record does not reflect that the court ruled on a part of a motion, the failure to rule on that part cannot be deemed a denial thereof (see People v. Matthews , 147 A.D.3d 1206, 1207, 47 N.Y.S.3d 498 [3d Dept. 2017] ; People v. Stewart , 111 A.D.3d 1395, 1396, 974 N.Y.S.2d 858 [4th Dept. 2013] ; see generally People v. Concepcion , 17 N.Y.3d 192, 197–198, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011] ). We therefore hold the case, reserve decision and remit the matter to County Court to decide that part of defendant's motion.
We reject defendant's further contention that, because he had neither actual nor constructive possession of the firearm, the evidence is legally insufficient to support the conviction. Viewing the evidence in the light most favorable to the People (see People v. Hines , 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ), we conclude that there is a valid line of reasoning and permissible inferences that could lead the jury to conclude that defendant actually or constructively possessed the subject weapon (see Penal Law § 10.00[8] ; see also People v. Manini , 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). To the extent that defendant challenges the sufficiency of the evidence before the grand jury, that contention is " ‘not reviewable on this appeal from the ensuing judgment based upon legally sufficient trial evidence’ " ( People v. Gonzales , 145 A.D.3d 1432, 1432, 43 N.Y.S.3d 616 [4th Dept. 2016], lv denied 29 N.Y.3d 1079, 64 N.Y.S.3d 169, 86 N.E.3d 256 [2017] ). Furthermore, viewing the evidence in the light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).