Opinion
889 KA 19-00317
03-26-2021
The PEOPLE of the State of New York, Respondent, v. Anthony LAWRENCE, Defendant-Appellant.
DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT. ANTHONY LAWRENCE, DEFENDANT-APPELLANT PRO SE. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
DONALD R. GERACE, UTICA, FOR DEFENDANT-APPELLANT.
ANTHONY LAWRENCE, DEFENDANT-APPELLANT PRO SE.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing those parts convicting defendant of criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree, and criminal possession of a firearm, granting that part of the omnibus motion seeking to suppress the handgun, and dismissing counts one, two, three and nine of the indictment, and as modified the judgment is affirmed and the matter is remitted to Oneida County Court for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of one count of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), two counts of criminal possession of a weapon in the third degree (§ 265.02 [1], [3]), one count of criminal possession of a firearm (§ 265.01-b [1]), one count of harassment in the second degree (§ 240.26 [1]), one count of exposure of a person (§ 245.01), and one count of criminal mischief in the fourth degree (§ 145.00 [1]), defendant contends in his main and pro se supplemental briefs that County Court erred in refusing to suppress the handgun that was seized from a vehicle in which he was a passenger and that, consequently, the four counts related to that handgun, i.e., the weapon and firearm counts, must be dismissed. We agree. According to the testimony at the suppression hearing, two officers responded to the scene of a one-car collision and observed defendant and a woman standing outside of the vehicle, which had struck a tree. The woman informed the officers that she had been driving the vehicle and that defendant had been a passenger. The woman did not have identification, and the officers allowed her to walk to her nearby residence to retrieve it. During the encounter, defendant informed the officers that the vehicle belonged to a friend and that its registration certificate was inside. Although defendant stated that he would retrieve the registration certificate, one of the officers stated that he would retrieve the registration certificate because he was standing closer to the car. The officer then bent down and entered the car so that he could access the glove compartment. As he did so, the officer saw a revolver on the dashboard that, because of the manner in which the airbag had deployed, had not been visible from the outside. At the suppression hearing, the officer testified that defendant did not consent to the search of the vehicle, and the officer agreed that he lacked probable cause to conduct the search.
As an initial matter, there is no dispute that defendant has standing as a passenger of the vehicle to challenge its search by virtue of the People's reliance on the statutory automobile presumption (see People v. Washington , 50 A.D.3d 1539, 1540, 856 N.Y.S.2d 783 [4th Dept. 2008], lv denied 11 N.Y.3d 742, 864 N.Y.S.2d 401, 894 N.E.2d 665 [2008] ; cf. People v. Graham , 171 A.D.3d 1559, 99 N.Y.S.3d 182 [4th Dept. 2019], lv denied 33 N.Y.3d 1069, 129 N.E.3d 367 [2019] ; see generally People v. Wesley , 73 N.Y.2d 351, 360-362, 540 N.Y.S.2d 757, 538 N.E.2d 76 [1989] ). Furthermore, under the circumstances of this case, we agree with defendant that the officer who conducted the search lacked probable cause to do so (see generally People v. Johnson , 183 A.D.3d 1273, 1274-1275, 123 N.Y.S.3d 378 [4th Dept. 2020] ). In reaching that conclusion, we reject the People's assertion that, based on the holdings of People v. Branigan, 67 N.Y.2d 860, 501 N.Y.S.2d 655, 492 N.E.2d 783 (1986) and People v. Philbert, 270 A.D.2d 210, 707 N.Y.S.2d 14 (1st Dept. 2000), lv denied 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868 (2000), the officer was entitled to enter the vehicle for the purpose of obtaining the vehicle's registration certificate. Unlike in Branigan , there were no " ‘safety reasons’ " in this case preventing the officer from allowing defendant to retrieve the registration himself ( 67 N.Y.2d at 861, 501 N.Y.S.2d 655, 492 N.E.2d 783 ) and, here, defendant did not initially fail to produce the registration when prompted to do so by law enforcement (cf. id. at 861-862, 501 N.Y.S.2d 655, 492 N.E.2d 783 ). Unlike in Philbert, 270 A.D.2d at 210, 707 N.Y.S.2d 14, the officer here, as he confirmed at the suppression hearing, lacked probable cause to search the vehicle and had no reason to believe that the vehicle contained evidence of a crime. We therefore modify the judgment by reversing those parts convicting defendant of criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree, and criminal possession of a firearm and dismissing counts one, two, three and nine of the indictment (see generally Johnson , 183 A.D.3d at 1273-1275, 123 N.Y.S.3d 378 ).
Defendant further contends in his main and pro se supplemental briefs that suppression of the handgun also requires us to reverse those parts of the judgment convicting him of harassment in the second degree, exposure of a person, and criminal mischief in the fourth degree. We reject that contention. Those charges are not related to the handgun and instead arose from defendant's conduct while in police custody after being transported to the police station, and we conclude that there is no "reasonable possibility that the evidence supporting the ... tainted counts influenced the guilty verdicts on the other [counts]" ( People v. Sinha , 19 N.Y.3d 932, 934, 951 N.Y.S.2d 697, 976 N.E.2d 223 [2012] [internal quotation marks omitted]; see People v. Bulgin , 105 A.D.3d 551, 551, 964 N.Y.S.2d 19 [1st Dept. 2013], lv denied 21 N.Y.3d 1002, 971 N.Y.S.2d 254, 993 N.E.2d 1276 [2013] ).
Defendant additionally contends in his pro se supplemental brief that he received ineffective assistance of counsel. Contrary to defendant's contention, defense counsel was not ineffective for failing to request a missing witness charge (see generally People v. Spagnuolo , 173 A.D.3d 1832, 1833, 104 N.Y.S.3d 461 [4th Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 632, 134 N.E.3d 631 [2019] ) or a circumstantial evidence charge (see generally People v. Johnson , 21 A.D.3d 1395, 1395, 804 N.Y.S.2d 162 [4th Dept. 2005], lv denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484 [2005] ) inasmuch as such requests would have had " ‘little or no chance of success’ " ( People v. Ross , 118 A.D.3d 1413, 1416, 988 N.Y.S.2d 756 [4th Dept. 2014], lv denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ; see generally People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ). With respect to defendant's claim that defense counsel was ineffective for eliciting testimony that he was on parole at the time of the collision, defendant "failed to meet his burden of establishing the absence of any legitimate explanations for [defense counsel's] strateg[y]" ( People v. Gregory , 72 A.D.3d 1522, 1523, 899 N.Y.S.2d 782 [4th Dept. 2010], lv denied 15 N.Y.3d 805, 908 N.Y.S.2d 165, 934 N.E.2d 899 [2010] ), which appears to have been to use the testimony to explain defendant's behavior at the scene.
Defendant failed to preserve his contention in his main brief that statements made by the prosecutor during summation deprived him of his right to a fair trial (see People v. Smith , 150 A.D.3d 1664, 1666, 55 N.Y.S.3d 559 [4th Dept. 2017], lv denied 30 N.Y.3d 953, 67 N.Y.S.3d 137, 89 N.E.3d 527 [2017] ), and similarly failed to preserve his contentions in his pro se supplemental brief that he was denied a fair trial based on prosecutorial misconduct during the questioning of witnesses at trial and that the court failed to provide defense counsel with certain transcripts (see People v. Henley , 145 A.D.3d 1578, 1579, 45 N.Y.S.3d 739 [4th Dept. 2016], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017], reconsideration denied 29 N.Y.3d 1080, 64 N.Y.S.3d 170, 86 N.E.3d 257 [2017] ; see generally CPL 470.05 [2] ). 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] ).
We have considered defendant's remaining contentions in his main and pro se supplemental briefs and conclude that none warrants reversal or further modification of the judgment.