Opinion
03-15-2024
The PEOPLE of the State of New York, Respondent, v. Marlon J. JOHNSON, Defendant-Appellant.
THE LAW OFFICES OF MATTHEW ALBERT, DARIEN CENTER (MATTHEW ALBERT OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (James F, Bargnesi, J.), rendered January 7, 2022. The judgment convicted defendant, upon a nonjury verdict, of criminal possession of a weapon in the second degree (three counts).
THE LAW OFFICES OF MATTHEW ALBERT, DARIEN CENTER (MATTHEW ALBERT OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
[1, 2] Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of three counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Defendant contends that the evidence is legally insufficient to support the conviction because the People failed to establish that he constructively possessed the three subject firearms. We conclude, however, that there is a "valid line of reasoning and permissible inferences from which a rational [trier of fact] could have found the element[ of constructive possession] proved beyond a reasonable doubt" (People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] [internal quotation marks omitted]). Contrary to defendant’s contention, the People established more than his "mere presence" in the apartment in which the firearms were found (People v. King, 206 A.D.3d 1593, 1594, 168 N.Y.S.3d 628 [4th Dept. 2022]; cf. People v. Mighty, 203 A.D.3d 1687, 1687-1688, 162 N.Y.S.3d 841 [4th Dept. 2022]). Rather, the People established through circumstantial evidence (see People v. Torres, 68 N.Y.2d 677, 678, 505 N.Y.S.2d 595, 496 N.E.2d 684 [1986]; People v. Boyd, 145 A.D.3d 1481, 1482, 43 N.Y.S.3d 641 [4th Dept. 2016], lv denied 29 N.Y.3d 947, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017]) that defendant "exercised ‘dominion or control’ over the [firearms] by a sufficient level of control over the area in which the [firearms were] found" (People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992]; see People v. Torrance, 206 A.D.3d 1722, 1723, 169 N.Y.S.3d 451 [4th Dept. 2022]). To the extent that defendant also contends that the evidence is legally insufficient to support the conviction because the testimony of the police witnesses was incredible as a matter of law, defendant failed to preserve the contention for our review inasmuch as he did not raise that ground in support of his motion for a trial order of dismissal (see People v. Kenney, 209 A.D.3d 1301, 1302, 176 N.Y.S.3d 408 [4th Dept. 2022], lv denied 39 N.Y.3d 986, 181 N.Y.S.3d 194, 201 N.E.3d 811 [2022]; People v. Wilcher, 158 A.D.3d 1267, 1267-1268, 70 N.Y.S.3d 712 [4th Dept. 2018], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018]).
In any event, we "necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant’s challenge regarding the weight of the evidence" (People v. Stepney, 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] [internal quotation marks omitted]; see People v. Sides, 215 A.D.3d 1250, 1251, 188 N.Y.S.3d 299 [4th Dept. 2023], lv denied 40 N.Y.3d 936, 194 N.Y.S.3d 775, 771, 215 N.E.3d 1216, 1212 [2023]). Nevertheless, viewing the evidence in light of the elements of the crimes in this nonjury trial (see Danielson, 9 N.Y.3d at 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 [1987]).
[3] Defendant further contends that the firearms in question, which were recovered from a safe pursuant to a search warrant, should have been suppressed because the search warrant application contained false statements. Defendant, however, failed to preserve that contention for our review (see People v. Franklin, 137 A.D.3d 550, 552, 27 N.Y.S.3d 32 [1st Dept. 2016], lv denied 27 N.Y.3d 1132, 39 N.Y.S.3d 114, 61 N.E.3d 513 [2016]), and we decline to review the contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, we reject defendant’s preserved contention that the search warrant application did not supply the requisite probable cause for the issuance of the search warrant. Contrary to defendant’s contention, the information in the search warrant application was provided by an identified citizen, i.e., a resident of the apartment in which the firearms were found, and the application established that the citizen possessed the requisite basis of knowledge for the information she provided. Thus, the statements in the search warrant application were sufficient to establish probable cause inasmuch as the People satisfied both prongs of the Aguilar-Spinelli test for evaluating secondhand information (see People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 [1985]; People v. Holmes, 115 A.D.3d 1179, 1180-1181, 982 N.Y.S.2d 239 [4th Dept. 2014], lv denied 23 N.Y.3d 1038, 993 N.Y.S.2d 251, 17 N.E.3d 506 [2014]).