Opinion
06-16-2017
The PEOPLE of the State of New York, Respondent, v. Romeo WILLIAMS, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, AND CURRAN, JJ.
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] ). Defendant contends that the evidence is not legally sufficient to support the conviction inasmuch as the People failed to establish that the firearm at issue was operable. We reject that contention. The People presented testimony establishing that defendant was observed carrying "something black," which appeared to be a gun, immediately before two witnesses heard several gunshots emanating from his direction (see People v. Spears, 125 A.D.3d 1401, 1402, 3 N.Y.S.3d 535, lv. denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 ; People v. Jackson, 122 A.D.3d 1310, 1311, 995 N.Y.S.2d 432, lv. denied 24 N.Y.3d 1220, 4 N.Y.S.3d 608, 28 N.E.3d 44 ; People v. Samba, 97 A.D.3d 411, 414, 948 N.Y.S.2d 58, lv. denied 20 N.Y.3d 1065, 962 N.Y.S.2d 616, 985 N.E.2d 926 ). Defendant was later observed throwing a revolver from a moving vehicle, and that revolver was recovered by the police. The firearms examiner testified that damage to the loading and unloading mechanism did not affect the operability of the revolver (see People v. Cavines, 70 N.Y.2d 882, 883, 524 N.Y.S.2d 178, 518 N.E.2d 1170 ; People v. Hailey, 128 A.D.3d 1415, 1416, 7 N.Y.S.3d 808, lv. denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 ), and he further testified that he successfully test-fired the revolver without damaging, repairing, or otherwise materially altering the weapon's firing apparatus (cf. People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823 ; see generally People v. Brown, 107 A.D.3d 1477, 1478, 967 N.Y.S.2d 319, lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 ; People v. Francis, 126 A.D.2d 740, 740, 511 N.Y.S.2d 136 ). We therefore conclude that defendant's conviction is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ) and, viewing the evidence in 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 ), we conclude that the verdict is not against the weight of the evidence (see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant failed to preserve for our review his contention that County Court erred in sua sponte taking judicial notice of the dismissal of the criminal charges against the two other occupants of the vehicle in which defendant was a passenger at the time of his arrest (see People v. Strauts, 26 A.D.3d 796, 796, 809 N.Y.S.2d 923, lv. denied 6 N.Y.3d 839, 814 N.Y.S.2d 87, 847 N.E.2d 384 ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). Defendant also failed to preserve for our review his contention that he was deprived of a fair trial based on prosecutorial misconduct (see People v. Love, 134 A.D.3d 1569, 1570, 23 N.Y.S.3d 511, lv. denied 27 N.Y.3d 967, 36 N.Y.S.3d 628, 56 N.E.3d 908 ), and we conclude that defendant's contention is without merit in any event. Likewise, defendant failed to preserve for our review his contention that the court abused its discretion in reopening the suppression hearing to clarify a witness's testimony before rendering its decision (see generally People v. Valentin, 132 A.D.3d 499, 500, 17 N.Y.S.3d 424, affd. 29 N.Y.3d 150, 53 N.Y.S.3d 592, 75 N.E.3d 1153 ). In any event, we reject that contention (see People v. Suphal, 7 A.D.3d 547, 547, 776 N.Y.S.2d 101, lv. denied 3 N.Y.3d 682, 784 N.Y.S.2d 20, 817 N.E.2d 838 ; People v. Tirado, 266 A.D.2d 130, 130, 698 N.Y.S.2d 484, lv. denied 94 N.Y.2d 867, 704 N.Y.S.2d 544, 725 N.E.2d 1106 ; see also Matter of State of New York v. Stein, 85 A.D.3d 1646, 1647, 924 N.Y.S.2d 231, affd. 20 N.Y.3d 99, 956 N.Y.S.2d 462, 980 N.E.2d 510, cert. denied 568 U.S. 1216, 133 S.Ct. 1500, 185 L.Ed.2d 556 ).
We also reject defendant's contention that he was deprived of his right to effective assistance of counsel based on defense counsel's failure to object to those three alleged errors. "Defendant, of course, bears the burden of establishing his claim that counsel's performance is constitutionally deficient" ( People
v. Nicholson, 26 N.Y.3d 813, 831, 28 N.Y.S.3d 663, 48 N.E.3d 944 ). To meet that burden, "[i]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged failures" ( People v. Jarvis, 113 A.D.3d 1058, 1059, 978 N.Y.S.2d 522, affd. 25 N.Y.3d 968, 8 N.Y.S.3d 650, 31 N.E.3d 112 [internal quotation marks omitted]; see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). "[A] reviewing court must be careful not to second-guess counsel, or assess counsel's performance with the clarity of hindsight, effectively substituting its own judgment of the best approach to a given case" ( People v. Conway, 148 A.D.3d 1739, 1741–1742, 50 N.Y.S.3d 739 [internal quotation marks omitted]; see People v. Pavone, 26 N.Y.3d 629, 647, 26 N.Y.S.3d 728, 47 N.E.3d 56 ). Here, we conclude that "defendant failed ‘to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's alleged shortcomings' " ( People v. Elliott, 73 A.D.3d 1444, 1445, 900 N.Y.S.2d 814, lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055, quoting Benevento, 91 N.Y.2d at 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.