Opinion
109833
12-10-2020
The PEOPLE of the State of New York, Respondent, v. Kenny WALTERS, Also Known as Baby Boy, Appellant.
Matthew C. Hug, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Matthew C. Hug, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered October 3, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal sale of a firearm in the third degree.
The facts are set forth in a prior appeal involving codefendant Jeffrey Hilts, with whom defendant was jointly tried ( People v. Hilts, 187 A.D.3d 1408, 134 N.Y.S.3d 563 [2020] ). Briefly, a confidential informant (hereinafter CI) was working with the Federal Bureau of Investigation (hereinafter FBI) and arranged to purchase a gun from Hilts. The sale was eventually completed by defendant, after which he was charged by indictment with multiple crimes. Following a jury trial with Hilts, defendant was convicted of criminal possession of a weapon in the second degree and criminal sale of a firearm in the third degree. County Court thereafter sentenced defendant to a term of imprisonment, to be followed by a period of postrelease supervision. Defendant appeals. We affirm.
Defendant's contention that the verdict was not supported by legally sufficient evidence is unpreserved for our review because the specific grounds being advanced on appeal were not the grounds asserted in his trial motion to dismiss (see People v. Meadows, 180 A.D.3d 1244, 1245, 118 N.Y.S.3d 803 [2020], lv denied 35 N.Y.3d 994, 125 N.Y.S.3d 635, 149 N.E.3d 396 [2020] ; People v. Norman, 154 A.D.3d 1185, 1186, 63 N.Y.S.3d 136 [2017], lv denied 31 N.Y.3d 986, 77 N.Y.S.3d 663, 102 N.E.3d 440 [2018] ). Defendant nevertheless contends that the verdict was against the weight of the evidence. Where, as here, "a contrary result would not have been unreasonable, we weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Novak, 148 A.D.3d 1352, 1354, 50 N.Y.S.3d 577 [2017] [internal quotation marks and citations omitted], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ; see People v. Arhin, 165 A.D.3d 1487, 1488, 85 N.Y.S.3d 631 [2018] ).
The record discloses that the CI arranged to purchase a gun from Hilts. At the time of the arranged sale, the CI went to Hilts' house. The CI went to the back of the house and encountered defendant, among other individuals. The CI testified that he requested that defendant discharge a bullet from the gun's chamber, a request with which defendant complied. The CI stated that he then gave defendant money in exchange for the gun, magazines and ammunition. After the sale, the CI returned to the FBI agent and gave him the gun, magazines and ammunition. The gun was subsequently test fired and determined to be operable. An investigator assisting the FBI testified that he obtained a report after checking the serial number of the gun and stated that defendant did not have the right to possess or sell it. Viewing this evidence, as well as the video evidence, in a neutral light, we are satisfied that defendant's convictions for criminal possession of a weapon in the second degree and criminal sale of a firearm in the third degree are supported by the weight of the evidence (see Penal Law §§ 265.03[3] ; 265.11[1]; People v. Hilts, 187 A.D.3d at 1414, 134 N.Y.S.3d 563 ).
Defendant contends that County Court erred in admitting the gun, magazines and ammunition into evidence due to gaps in the chain of custody. "The failure to establish a complete chain of custody may be excused where there are reasonable assurances of the identity and unchanged condition of the evidence" ( People v. Howard, 305 A.D.2d 869, 870, 761 N.Y.S.2d 115 [2003] [internal quotation marks and citation omitted], lv denied 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 [2003] ). Both the CI and the FBI agent testified that the challenged evidence that was admitted into evidence was the same as involved in the controlled buy. The foregoing thus established reasonable assurances of the identity of the gun, magazines and ammunition (see People v. Gilmore, 72 A.D.3d 1191, 1192–1193, 898 N.Y.S.2d 717 [2010] ; People v. Pacheco, 274 A.D.2d 746, 747, 711 N.Y.S.2d 566 [2000], lv denied 95 N.Y.2d 937, 721 N.Y.S.2d 613, 744 N.E.2d 149 [2000] ; People v. Capers, 105 A.D.2d 842, 843, 482 N.Y.S.2d 37 [1984] ; People v. Schoonmaker, 103 A.D.2d 936, 937, 479 N.Y.S.2d 765 [1984] ). Although one individual who logged the gun into evidence did not testify at trial, the absence of his testimony did not undermine the reasonable assurances provided by the testimony of the CI and the FBI agent (see People v. Battistini, 306 A.D.2d 636, 637, 761 N.Y.S.2d 363 [2003], lv denied 1 N.Y.3d 568, 775 N.Y.S.2d 785, 807 N.E.2d 898 [2003] ; People v. Pacheco, 274 A.D.2d at 747, 711 N.Y.S.2d 566 ). Regardless, any gaps in the chain of custody go to the weight to be accorded to the challenged evidence and not its admissibility (see People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; People v. Meadows, 180 A.D.3d at 1247, 118 N.Y.S.3d 803 ). Likewise, any discrepancy in the description of the gun caliber goes to the weight of the evidence (see People v. Lanza, 299 A.D.2d 649, 650–651, 749 N.Y.S.2d 618 [2002], lv denied 100 N.Y.2d 540, 763 N.Y.S.2d 5, 793 N.E.2d 419 [2003] ).
Defendant also argues that County Court's Molineux ruling permitting the People to offer evidence of his and Hilts' gang affiliation was erroneous. Initially, we note that it does not appear from the record that any gang affiliation evidence with respect to defendant was admitted. To the extent that it was, and to the extent that evidence of Hilts' gang affiliation was admitted, defendant's argument is without merit for the reasons stated in People v. Hilts, 187 A.D.3d at 1414, 134 N.Y.S.3d 563 ). Defendant's assertion that the court erred in denying his motion for a mistrial based upon certain testimony given by the FBI agent at trial is likewise without merit for reasons stated in People v. Hilts, 187 A.D.3d at 1415, 134 N.Y.S.3d 563 ).
Egan Jr., J.P., Mulvey, Pritzker and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.