Summary
In Hughes, the defendant was convicted, like the defendant here, of possessing a weapon not in his home or place of business.
Summary of this case from People v. QuilesOpinion
01-02-2015
The PEOPLE of the State of New York, Respondent, v. Earnest HUGHES, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.
Opinion
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] ). Contrary to defendant's contention, we conclude that County Court properly refused to suppress tangible evidence and identification testimony. Defendant lacked standing to challenge the search of his codefendant's residence or the seizure of tangible evidence therefrom (see People v. Sommerville, 6 A.D.3d 1232, 1232, 775 N.Y.S.2d 654, lv. denied 3 N.Y.3d 648, 782 N.Y.S.2d 419, 816 N.E.2d 209 ; People v. Christian, 248 A.D.2d 960, 960, 670 N.Y.S.2d 957, lv. denied 91 N.Y.2d 1006, 676 N.Y.S.2d 134, 698 N.E.2d 963 ). The evidence at the suppression hearing established that the police had reasonable suspicion to detain defendant to conduct the showup identification procedure (see People v. Evans, 34 A.D.3d 1301, 1302, 825 N.Y.S.2d 617, lv. denied 8 N.Y.3d 845, 830 N.Y.S.2d 704, 862 N.E.2d 796 ). In addition, the procedure was conducted in temporal and geographic proximity to the crime (see People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 ), and it was not unduly suggestive, despite the fact that two witnesses viewed defendant at the same time (see People v. Woodard, 83 A.D.3d 1440, 1441, 919 N.Y.S.2d 718, lv. denied 17 N.Y.3d 803, 929 N.Y.S.2d 111, 952 N.E.2d 1106 ; People v. Delarosa, 28 A.D.3d 1186, 1187, 813 N.Y.S.2d 610, lv. denied 7 N.Y.3d 811, 822 N.Y.S.2d 486, 855 N.E.2d 802 ).
Defendant failed to preserve for our review his contention that the People committed a Brady violation by failing to produce the recording of the victim's 911 call prior to the suppression hearing, inasmuch as he failed to move to reopen the suppression hearing when the recording was produced (see People v. Whitted, 117 A.D.3d 1179, 1182, 985 N.Y.S.2d 319, lv. denied 23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289 ). Defendant's contention that the People committed a Rosario violation by failing to preserve a police officer's notes is also unpreserved because defendant did not object to the destruction of the notes or seek a sanction (see People v. Rogelio, 79 N.Y.2d 843, 844, 580 N.Y.S.2d 185, 588 N.E.2d 83 ; People v. Sanzotta, 191 A.D.2d 1032, 1032–1033, 595 N.Y.S.2d 152 ). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
The court properly denied defendant's request to instruct the jury with respect to the defense of temporary innocent possession of a firearm. Even viewing the evidence in the light most favorable to defendant, we conclude that no reasonable view of the evidence supports that defense (see People v. McCoy, 46 A.D.3d 1348, 1349–1350, 848 N.Y.S.2d 505, lv. denied 10 N.Y.3d 813, 857 N.Y.S.2d 47, 886 N.E.2d 812 ). The court also properly refused to charge the defense of justification inasmuch as that defense does not apply to criminal possession of a weapon (see People v. Bailey, 111 A.D.3d 1310, 1311–1312, 974 N.Y.S.2d 227, lv. denied 23 N.Y.3d 1018, 992 N.Y.S.2d 800, 16 N.E.3d 1280 ).
The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), is legally sufficient to support the conviction. 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 generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Defendant failed to establish that the prosecutor's alleged misconduct “caused such substantial prejudice to [him] that he has been denied due process of law” (People v. Mott, 94 A.D.2d 415, 419, 465 N.Y.S.2d 307 ; see People v. Jacobson, 60 A.D.3d 1326, 1328, 876 N.Y.S.2d 259, lv. denied 12 N.Y.3d 916, 884 N.Y.S.2d 697, 912 N.E.2d 1078 ). Defendant received the minimum term of incarceration authorized by law for a class C violent felony and, thus, that part of his sentence cannot be considered unduly harsh or severe (see People v. Barlow, 8 A.D.3d 1027, 1028, 778 N.Y.S.2d 375, lv. denied 3 N.Y.3d 657, 782 N.Y.S.2d 699, 816 N.E.2d 572 ). To the extent that defendant contends that the period of postrelease supervision is unduly harsh and severe, we decline to exercise our power to modify that part of the sentence as a matter of discretion in the interest of justice (see CPL 470.15[6][b] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.