Opinion
284 KA 17-00494
06-03-2022
The PEOPLE of the State of New York, Respondent, v. Dyquaun J. FRANCIS, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (CAITLIN M. CONNELLY OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
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] ) and unlawful possession of marihuana (former § 221.05). We affirm.
Viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the second degree 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 with respect to that crime (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Although a different verdict would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see People v. Metales , 171 A.D.3d 1562, 1564, 99 N.Y.S.3d 559 [4th Dept. 2019], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 677, 130 N.E.3d 1287 [2019] ).
Defendant's contention that Supreme Court erred in its Molineux ruling with respect to evidence of an uncharged crime is not preserved for our review because defendant did not challenge that evidence in opposition to the People's application to introduce Molineux evidence or otherwise object to the admission thereof (see People v. Green , 196 A.D.3d 1148, 1150, 151 N.Y.S.3d 776 [4th Dept. 2021], lv denied 37 N.Y.3d 1096, 156 N.Y.S.3d 785, 178 N.E.3d 432 [2021], reconsideration denied 37 N.Y.3d 1161, 160 N.Y.S.3d 697, 181 N.E.3d 1125 [2022] ; People v. Finch , 180 A.D.3d 1362, 1363, 117 N.Y.S.3d 415 [4th Dept. 2020], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 627, 149 N.E.3d 388 [2020] ) 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] ). We reject defendant's related contention that defense counsel was ineffective for failing to object to the introduction of that evidence. "[I]t is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for [defense] counsel's" failure to object to the Molineux evidence, and defendant failed to meet that burden ( People v. Conley , 192 A.D.3d 1616, 1620, 144 N.Y.S.3d 508 [4th Dept. 2021], lv denied 37 N.Y.3d 1026, 153 N.Y.S.3d 417, 175 N.E.3d 442 [2021] [internal quotation marks omitted]; see also People v. Williams , 107 A.D.3d 1516, 1516-1517, 966 N.Y.S.2d 784 [4th Dept. 2013], lv denied 21 N.Y.3d 1047, 972 N.Y.S.2d 544, 995 N.E.2d 860 [2013] ). Nor was defense counsel ineffective for failing to request a circumstantial evidence charge. "It is well settled that a trial court must grant a defendant's request for a circumstantial evidence charge when the proof of the defendant's guilt rests solely on circumstantial evidence" ( People v. Hardy , 26 N.Y.3d 245, 249, 22 N.Y.S.3d 377, 43 N.E.3d 734 [2015] ). "By contrast, where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given" ( id. ). Here, given the officers’ testimony regarding their observations of defendant, a circumstantial evidence charge was not required (see generally People v. Lawrence , 186 A.D.2d 1016, 1016-1017, 588 N.Y.S.2d 471 [4th Dept. 1992], lv denied 81 N.Y.2d 790, 594 N.Y.S.2d 737, 610 N.E.2d 410 [1993] ) and, therefore, defense counsel was not ineffective for failing to request it (see People v. Smith , 145 A.D.3d 1628, 1630, 44 N.Y.S.3d 658 [4th Dept. 2016], lv denied 31 N.Y.3d 1017, 78 N.Y.S.3d 287, 102 N.E.3d 1068 [2018] ).
Finally, defendant's sentence is not unduly harsh or severe.