Opinion
2016-01114 Ind. No. 1815/13
11-06-2019
The PEOPLE, etc., Respondent, v. James MOSES, Appellant.
Roberto D. DiDio, Kew Gardens, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Daniel Bresnahan and Hilda Mortensen of counsel), for respondent.
Roberto D. DiDio, Kew Gardens, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Daniel Bresnahan and Hilda Mortensen of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Alan L. Honorof, J.), rendered January 8, 2016, convicting him of criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Anthony W. Paradiso, J.), of the suppression of physical evidence.
ORDERED that the judgment is affirmed.
On October 26, 2012, based on information that a certain individual provided to the police department, which then provided such information to the probation department, probation officers accompanied by police officers performed a warrantless search inside a bedroom of a house where the defendant resided with his girlfriend. Inside an unlocked safe, the officers found two firearms. The defendant, who was not in the house when the guns were found, was convicted upon a jury verdict of multiple counts of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, under a theory of constructive possession.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), and drawing all reasonable inferences in the People's favor (see People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 ; People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 ; People v. Ford, 66 N.Y.2d 428, 437, 497 N.Y.S.2d 637, 488 N.E.2d 458 ), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. "To support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found" ( People v. Williams, 170 A.D.3d 1046, 1047, 96 N.Y.S.3d 273 ; see Penal Law § 10.00[8] ; People v. Muhammad, 16 N.Y.3d 184, 188, 920 N.Y.S.2d 760, 945 N.E.2d 1010 ; People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 ). "Constructive possession may be established by direct evidence or by circumstantial evidence with inferences drawn from the facts presented in the case" ( People v. Skyles, 266 A.D.2d 321, 322, 698 N.Y.S.2d 286 ; see People v. Williams, 170 A.D.3d at 1047, 96 N.Y.S.3d 273 ). "We apply the same standard in reviewing the legal sufficiency in circumstantial evidence cases as in direct evidence cases" ( People v. Williams, 170 A.D.3d at 1047, 96 N.Y.S.3d 273 ; see People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329 ).
Based upon the discovery by the police officers and probation officers of, inter alia, the defendant's driver license, the title to his vehicle, and his birth certificate inside the same bedroom safe in which the subject firearms were found, inside the home that the defendant identified as his residence, "the jury could reasonably infer that the defendant exercised dominion and control over the bedroom in which the [firearms] ... were found, and thus, that he constructively possessed those items" ( People v. Williams, 170 A.D.3d at 1047–1048, 96 N.Y.S.3d 273 ; see People v. Torres, 68 N.Y.2d 677, 678–679, 505 N.Y.S.2d 595, 496 N.E.2d 684 ; People v. Robertson, 48 N.Y.2d 993, 425 N.Y.S.2d 545, 401 N.E.2d 903 ; People v. Grasso, 163 A.D.3d 991, 993, 82 N.Y.S.3d 65 ; People v. Skyles, 266 A.D.2d at 322, 698 N.Y.S.2d 286 ; People v. Gomez, 191 A.D.2d 583, 595 N.Y.S.2d 83 ; People v. Pinchback, 187 A.D.2d 540, 541–542, 589 N.Y.S.2d 600, affd 82 N.Y.2d 857, 609 N.Y.S.2d 158, 631 N.E.2d 100 ).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). While jurors could have reasonably concluded that the defendant's girlfriend also had access to the firearms, "and might at some point have had possession of them, ‘[m]ere access by others ... does not preclude a finding of constructive possession’ " ( People v. Williams, 170 A.D.3d at 1048, quoting People v. Pinchback, 187 A.D.2d at 541–542, 589 N.Y.S.2d 600 ). "Moreover, ‘possession, even if joint, is still possession" ( People v. Williams, 170 A.D.3d at 1048, 96 N.Y.S.3d 273, quoting People v. Torres, 68 N.Y.2d at 679, 505 N.Y.S.2d 595, 496 N.E.2d 684 ; see People v. Tirado, 38 N.Y.2d 955, 956, 384 N.Y.S.2d 151, 348 N.E.2d 608 ).
The defendant's contention that the Supreme Court should have granted his counsel's request for an adjournment because the denial of the request deprived him of his right to counsel of his choice is unpreserved for appellate review (see People v. Tineo, 64 N.Y.2d 531, 535–536, 490 N.Y.S.2d 159, 479 N.E.2d 795 ; People v. Greene, 169 A.D.3d 715, 91 N.Y.S.3d 698 ; People v. Brown, 90 A.D.3d 545, 546, 934 N.Y.S.2d 414 ), and we decline to review the defendant's contention in the exercise of our interest of justice jurisdiction (see People v. Greene, 169 A.D.3d at 715, 91 N.Y.S.3d 698 ).
We agree with the Supreme Court's determination declining to suppress physical evidence. Probation officers learned from the police that there was credible information that the defendant was in possession of firearms that he kept at the home he shared with his girlfriend. The order and conditions of the defendant's probation provided, inter alia, that the defendant was not to "possess or own ... weapons, ammunition or simulated firearms, including but not limited to those defined in Section 265.00 of the New York State Penal Code." The search by probation officers of the defendant's bedroom, which he shared with his girlfriend, "was rationally and reasonably related to the [probation] officers' duty to detect and prevent [probation] violations for the protection of the public from the commission of further crimes and to prevent violations of [probation]" ( People v. Clark, 167 A.D.3d 1035, 1036, 88 N.Y.S.3d 894 ). Contrary to the defendant's contentions, the fact that the information regarding the presence of firearms in the defendant's home was provided to the probation department by the police department did not signify that the home visit was initiated by the police department, rather than the probation department, or render the search a police operation (see People v. Johnson, 63 N.Y.2d 888, 483 N.Y.S.2d 201, 472 N.E.2d 1029 ; People v. Purnell, 166 A.D.3d 814, 815, 88 N.Y.S.3d 86 ; People v. Adams, 126 A.D.3d 1405, 1405, 5 N.Y.S.3d 779 ; People v. Johnson, 54 A.D.3d 969, 864 N.Y.S.2d 132 ; People v. Montero, 44 A.D.3d 796, 797, 843 N.Y.S.2d 394 ). Moreover, the People met their burden of showing that consent to the warrantless search was freely and voluntarily given by the defendant's girlfriend, "who possessed the requisite degree of authority and control over the premises" ( People v. Clark, 167 A.D.3d at 1036, 88 N.Y.S.3d 894 ; see People v. Bunce, 141 A.D.3d 536, 537, 35 N.Y.S.3d 414 ; People v. Gonzalez, 222 A.D.2d 453, 453, 634 N.Y.S.2d 538 ).
Contrary to the defendant's contentions, the evidence regarding his probation status, and the relevant terms and conditions of his probation, were inextricably interwoven with the facts of the case and were properly admitted "to complete the narrative of the events leading up to the crime[s] charged" ( People v. Ramos, 287 A.D.2d 471, 472, 731 N.Y.S.2d 50 ; see People v. Boyd, 159 A.D.3d 1358, 1360, 73 N.Y.S.3d 301 ; People v. Crawford, 158 A.D.3d 1255, 1256, 71 N.Y.S.3d 268 ). Moreover, the Supreme Court minimized any prejudice to the defendant by precluding any evidence of the crime of which the defendant was previously convicted (see People v. Harris, 147 A.D.3d 1328, 1330, 47 N.Y.S.3d 528 ).
"A basic premise of our criminal justice system is that a defendant has the right to trial by an impartial jury" ( People v. Arnold, 96 N.Y.2d 358, 360, 729 N.Y.S.2d 51, 753 N.E.2d 846 ; see People v. Branch, 46 N.Y.2d 645, 652, 415 N.Y.S.2d 985, 389 N.E.2d 467 ; People v. Tullock, 148 A.D.3d 1061, 1062, 50 N.Y.S.3d 135 ). " ‘[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial’ " ( People v. Gross, 172 A.D.3d 741, 743, 99 N.Y.S.3d 367, quoting People v. Warrington, 28 N.Y.3d 1116, 1119–1120, 45 N.Y.S.3d 345, 68 N.E.3d 70 ; see People v. Harris, 19 N.Y.3d 679, 685, 954 N.Y.S.2d 777, 978 N.E.2d 1246 ; People v. Johnson, 17 N.Y.3d 752, 753, 929 N.Y.S.2d 16, 952 N.E.2d 1008 ). " ‘[A] party may challenge a prospective juror for cause if the juror ‘has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at trial’ " ( People v. Arnold, 96 N.Y.2d at 362, 729 N.Y.S.2d 51, 753 N.E.2d 846, quoting CPL 270.20[1][b] ). "Upon such a challenge, a juror who has revealed doubt, because of prior knowledge or opinion, about [his or] her ability to serve impartially must be excused unless the juror states unequivocally on the record that [he or] she can be fair. While the CPL, unlike the former Code of Criminal Procedure, does not require any particular expurgatory oath or talismanic words, jurors must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent them from reaching an impartial verdict. If there is any doubt about a prospective juror's impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another" ( People v. Arnold, 96 N.Y.2d at 362, 729 N.Y.S.2d 51, 753 N.E.2d 846 [internal quotation marks and citations omitted]; see People v. Gross, 172 A.D.3d at 743, 99 N.Y.S.3d 367 ). Here, although certain prospective jurors initially expressed doubt as to whether they could evaluate witness testimony impartially, they ultimately provided unequivocal assurances that they would fairly evaluate the evidence. Since the Supreme Court found these prospective jurors' assurances credible, it had the discretion to deny the defendant's challenges for cause (see People v. Arnold, 96 N.Y.2d at 363, 729 N.Y.S.2d 51, 753 N.E.2d 846 ; People v. Gross, 172 A.D.3d at 743, 99 N.Y.S.3d 367 ; People v. Hoffmann, 122 A.D.3d 945, 998 N.Y.S.2d 87 ; People v. Williams, 107 A.D.3d 746, 747, 966 N.Y.S.2d 225 ).
"[A] criminal defendant states a violation of the Confrontation Clause by showing that he [or she] was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness’ " ( Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674, quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 ). The defendant has failed to meet that burden, as he failed to establish the propriety of any of the subjects of cross-examination curtailed by the Supreme Court as the result of sustaining certain of the prosecutor's objections.
The defendant's remaining contentions are without merit.
MASTRO, J.P., BALKIN, IANNACCI and CHRISTOPHER, JJ., concur.