Opinion
04-20-2017
The PEOPLE of the State of New York, Respondent, v. Norman D. CHERRY, Appellant.
Terrence M. Kelly, Albany, for appellant, and appellant pro se. Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.
Terrence M. Kelly, Albany, for appellant, and appellant pro se.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.
Before: EGAN JR., J.P., LYNCH, ROSE, CLARK and MULVEY, JJ.
ROSE, J.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered April 28, 2014, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree.
Defendant was in bed just before dawn when police officers executing a search warrant entered his apartment and discovered a loaded .22 caliber revolver under the pillow where he had been lying. He was charged by indictment with criminal possession of a weapon in the second degree and, following a jury trial, he was convicted as charged. Defendant was sentenced, as a second felony offender, to a prison term of 12 years, with five years of postrelease supervision, and he now appeals.
Although defendant initially contends that the indictment was obtained in violation of his statutory right to testify before the grand jury, this argument was waived "since he did not move to dismiss the indictment upon such ground within five days of arraignment [upon the indictment] as required by [CPL 190.50(5)(c) ]" (People v. Yontz, 116 A.D.3d 1242, 1244, 983 N.Y.S.2d 694 [2014], lv. denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 [2014] ; see People v. Welden, 140 A.D.3d 1406, 1406, 34 N.Y.S.3d 676 [2016], lv. denied 28 N.Y.3d 938, 40 N.Y.S.3d 366, 63 N.E.3d 86 [2016] ). Nor are we persuaded that the failure of counsel to make such a motion constituted less than meaningful representation inasmuch as defendant has not established "an absence of strategic or legitimate reasons for counsel's failure to pursue this course of action" (People v. Wright, 5 A.D.3d 873, 874–875, 773 N.Y.S.2d 486 [2004], lv. denied 3 N.Y.3d 651, 782 N.Y.S.2d 422, 816 N.E.2d 212 [2004] ).
Defendant next contends that his conviction is not supported by legally sufficient evidence and is against the weight of the evidence because the People failed to prove that he constructively possessed the revolver. While the legal sufficiency argument is unpreserved for our review (see People v. Brown, 139 A.D.3d 1178, 1178, 31 N.Y.S.3d 308 [2016] ; People v. Peterkin, 135 A.D.3d 1192, 1192, 23 N.Y.S.3d 719 [2016] ), "[n]evertheless, we must, as part of our weight of the evidence review, evaluate whether the elements of [the] crime were proven beyond a reasonable doubt" (People v. Collier, 146 A.D.3d 1146, 1147–1148, 46 N.Y.S.3d 276 [2017] ; see People v. Montford, 145 A.D.3d 1344, 1345, 45 N.Y.S.3d 598 [2016] ). As relevant here, "[c]onstructive possession can be demonstrated where there is evidence—either direct or circumstantial—that [the] defendant exercised dominion and control over the weapon or the area in which it was found" (People v. Butler, 126 A.D.3d 1122, 1123, 4 N.Y.S.3d 751 [2015] [internal quotation marks and citation omitted], lv. denied 25 N.Y.3d 1199, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015] ; accord People v. Graham, 138 A.D.3d 1242, 1242, 29 N.Y.S.3d 656 [2016], lv. denied 28 N.Y.3d 930, 40 N.Y.S.3d 358, 63 N.E.3d 78 [2016] ; People v. Oliver, 135 A.D.3d 1188, 1190, 23 N.Y.S.3d 696 [2016], lv. denied 27 N.Y.3d 1003, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ). Further, constructive possession "may be found even though others have access to the contraband or the area where it is located" (People v. Perry, 116 A.D.3d 1253, 1254, 983 N.Y.S.2d 699 [2014] ; accord People v. Graham, 138 A.D.3d at 1243, 29 N.Y.S.3d 656 ; People v. Rodwell, 122 A.D.3d 1065, 1067, 996 N.Y.S.2d 398 [2014], lv. denied 25 N.Y.3d 1170, 15 N.Y.S.3d 302, 36 N.E.3d 105 [2015] ).
The trial evidence established that police officers executing the search warrant breached a window that opened into a bedroom in defendant's apartment where defendant and a female were observed lying on a bed. A search of the bedroom produced, among other things, the loaded revolver underneath the pillow on the right side of the bed where defendant had been lying. While a different verdict would not have been unreasonable (see generally People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we are satisfied that the evidence, when viewed in a neutral light and after deferring to the jury's credibility determinations (see generally People v. Poulos, 144 A.D.3d 1389, 1390–1391, 43 N.Y.S.3d 148 [2016] ), established defendant's constructive possession of the revolver and, thus, the verdict is in accord with the weight of the evidence (see People v. Perry, 116 A.D.3d at 1255, 983 N.Y.S.2d 699 ; People v. Dawson, 110 A.D.3d 1350, 1352–1353, 973 N.Y.S.2d 850 [2013], lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014] ).
We are similarly unpersuaded by defendant's contention that County Court erred in denying his motion to suppress the revolver inasmuch as our review of the record confirms that the issuing court had probable cause to believe that drugs and weapons would be found in defendant's apartment. The search warrant application and the testimony from the suppression hearing, taken together, along with the presumption of validity that is accorded to a search warrant that has been judicially approved (see People v. Castillo, 80 N.Y.2d 578, 585, 592 N.Y.S.2d 945, 607 N.E.2d 1050 [1992], cert.
denied 507 U.S. 1033, 113 S.Ct. 1854, 123 L.Ed.2d 477 [1993] ; People v. Vanness, 106 A.D.3d 1265, 1266, 965 N.Y.S.2d 227 [2013], lv. denied 22 N.Y.3d 1044, 981 N.Y.S.2d 378, 4 N.E.3d 390 [2013] ; People v. Welch, 2 A.D.3d 1354, 1357, 770 N.Y.S.2d 230 [2003], lv. denied 2 N.Y.3d 747, 778 N.Y.S.2d 473, 810 N.E.2d 926 [2004] ), provided "sufficient information to support a reasonable belief that evidence of a crime" would be found in defendant's apartment (People v. Pasco, 134 A.D.3d 1257, 1258, 20 N.Y.S.3d 751 [2015] ; see People v. Williams, 140 A.D.3d 1526, 1526–1527, 34 N.Y.S.3d 528 [2016], lv. denied 28 N.Y.3d 1076, 47 N.Y.S.3d 235, 69 N.E.3d 1031 [2016] ). Further, the description of the first floor apartment as the premises to be searched was sufficiently precise (see People v. Carpenter, 51 A.D.3d 1149, 1150, 857 N.Y.S.2d 344 [2008], lv. denied 11 N.Y.3d 786, 866 N.Y.S.2d 613, 896 N.E.2d 99 [2008] ), and defendant's Aguilar–Spinelli claim is unpreserved for our review (see People v. Wolfe, 103 A.D.3d 1031, 1034, 962 N.Y.S.2d 403 [2013], lv. denied 21 N.Y.3d 1021, 971 N.Y.S.2d 503, 994 N.E.2d 399 [2013] ); in any event, it is without merit (see People v. Cavallaro, 123 A.D.3d 1221, 1222, 998 N.Y.S.2d 516 [2014] ).
Next, we perceive no abuse of discretion in County Court's Sandoval compromise as the three of six convictions that the People were allowed to inquire about "were neither too remote in time nor similar to the charged crimes and were probative of defendant's credibility and willingness to put his interests above those of society" (People v. Mould, 143 A.D.3d 1186, 1188, 40 N.Y.S.3d 241 [2016], lv. denied 28 N.Y.3d 1187, 52 N.Y.S.3d 713, 75 N.E.3d 105 [2017] ; see People v. Portis, 129 A.D.3d 1300, 1303, 12 N.Y.S.3d 328 [2015], lvs. denied 26 N.Y.3d 1088, 1091, 23 N.Y.S.3d 644, 44 N.E.3d 942 [2015] ). Defendant's contention that the People improperly questioned him about his gang affiliation is unpreserved for our review (see People v. Fournier, 137 A.D.3d 1318, 1321, 26 N.Y.S.3d 796 [2016], lv. denied 28 N.Y.3d 929, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016] ) and, in any event, is without merit inasmuch as it was defendant, and not the People, who first raised the issue (see People v. Abrams, 73 A.D.3d 1225, 1228, 900 N.Y.S.2d 489 [2010], affd. 17 N.Y.3d 760, 929 N.Y.S.2d 30, 952 N.E.2d 1022 [2011] ). Defendant's assertion that improper remarks by the prosecutor during summation deprived him of a fair trial is similarly unpreserved (see People v. Rivera, 124 A.D.3d 1070, 1074–1075, 2 N.Y.S.3d 279 [2015], lvs. denied 26 N.Y.3d 971, 18 N.Y.S.3d 607, 40 N.E.3d 585 [2015] ). In any event, while we agree that the remarks at issue were improper, "viewing the summation as a whole, the prosecutor did not engage in a pervasive and flagrant pattern of misconduct so as to deprive defendant of a fair trial" (People v. Collier, 146 A.D.3d at 1151, 46 N.Y.S.3d 276 ; see People v. Nadal, 131 A.D.3d 729, 731, 14 N.Y.S.3d 591 [2015], lv. denied 26 N.Y.3d 1041, 22 N.Y.S.3d 171, 43 N.E.3d 381 [2015] ).
Finally, in light of defendant's prior criminal history and the fact that his sentence is less than the statutory maximum, "we are not persuaded that the sentence imposed was harsh or excessive or that extraordinary circumstances warrant a reduction in the interest of justice" (People v. Lemon, 137 A.D.3d 1422, 1423, 27 N.Y.S.3d 726 [2016], lv. denied 27 N.Y.3d 1135, 39 N.Y.S.3d 116, 61 N.E.3d 515 [2016] ). Defendant's remaining contentions have been considered and determined to be lacking in merit.
ORDERED that the judgment is affirmed.
EGAN JR., J.P., LYNCH, CLARK and MULVEY, JJ., concur.