Opinion
07-26-2024
The PEOPLE of the State of New York, Respondent, v. Samuel SHAW, Also Known as Sav, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered August 16, 2019. The judgment convicted defendant upon a jury verdict of murder in the first degree (two counts), murder in the second degree (two counts), attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree (three counts).
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., MONTOUR, OGDEN, DELCONTE, AND HANNAH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is modified on the law by reversing those parts convicting defendant of murder in the second degree under counts 3 and 4 of the indictment and dismissing those counts and by directing that the sentences imposed on counts 7 and 8 run concurrently with the sentences imposed on counts 1, 2, 5, and 6, and as modified the judgment is affirmed.
Memorandum: Defendant was convicted following a jury trial of two counts of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]; [b]), two counts of murder in the second degree (§ 125.25 [1]), one count each of attempted murder in the second degree (§§ 110.00, 125.25 [1]) and assault in the first degree (§ 120.10 [1]), and three counts of criminal possession of a weapon (CPW) in the second degree (§ 265.03 [1] [b]; [3]). The conviction stems from an incident during which defendant fired 13 shots from a 9mm handgun in a parking lot. Five of the bullets struck a sedan, killing the two occupants. Three shots were fired into an SUV that was parked next to the sedan; the sole occupant of the SUV was struck and paralyzed as a result of her injuries.
As defendant contends and the People correctly concede, counts 3 and 4 of the indictment, charging him with murder in the second degree, must be dismissed as lesser inclusory offenses of counts 1 and 2 of the indictment, charging him with murder in the first degree (see People v. Beard, 189 A.D.3d 2097, 2099, 138 N.Y.S.3d 771 [4th Dept. 2020], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 111, 167 N.E.3d 1246 [2021]; People v. Clayton, 175 A.D.3d 963, 967, 108 N.Y.S.3d 94 [4th Dept. 2019]; see generally CPL 300.40 [3] [b]). We therefore modify the judgment accordingly.
[1] As defendant further contends and the People correctly concede, County Court erred in directing that the sentences imposed for CPW in the second degree under counts 7 and 8 of the indictment run consecutively to the sentences imposed for murder in the first degree, attempted murder in the second degree, and assault in the first degree under counts 1, 2, 5, and 6 of the indictment inasmuch as there was no evidence presented that defendant possessed the gun independently of his intent to use it in the shooting (see People v. Alligood, 192 A.D.3d 1508, 1510, 140 N.Y.S.3d 809 [4th Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 679, 172 N.E.3d 791 [2021]; People v. Boyd, 192 A.D.3d 1659, 1661, 144 N.Y.S.3d 278 [4th Dept. 2021]; People v. Tripp, 177 A.D.3d 1409, 1410-1411, 113 N.Y.S.3d 432 [4th Dept. 2019], lv denied 34 N.Y.3d 1133, 118 N.Y.S.3d 534, 141 N.E.3d 490 [2020]; see generally People v. Brown, 21 N.Y.3d 739, 750-752, 977 N.Y.S.2d 723, 999 N.E.2d 1168 [2013]; People v. Wright, 19 N.Y.3d 359, 365, 948 N.Y.S.2d 228, 971 N.E.2d 358 [2012]). We therefore further modify the judgment by directing that the sentences imposed on counts 7 and 8 of the indictment shall run concurrently with the sentences imposed on counts 1, 2, 5, and 6.
[2] Relying on New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), defendant contends that his conviction for CPW in the second degree under counts 8 and 9 of the indictment (Penal Law § 265.03 [3]) is unconstitutional. Defendant failed to preserve that contention for our review (see People v. Cabrera, 41 N.Y.3d 35, 39, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]; People v. Nixon, 222 A.D.3d 1384, 1385, 202 N.Y.S.3d 619 [4th Dept. 2023], lv denied 41 N.Y.3d 943, 206 N.Y.S.3d 247, 229 N.E.3d 1140 [2024]; People v. Jacque-Crews, 213 A.D.3d 1335, 1335-1336, 183 N.Y.S.3d 234 [4th Dept. 2023], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023]), 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]; People v. Ocasio, 222 A.D.3d 1364, 1365, 201 N.Y.S.3d 819 [4th Dept. 2023]; People v. Clinton, 222 A.D.3d 1427, 1428, 201 N.Y.S.3d 827 [4th Dept. 2023]; see generally People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457 [2006], rearg denied 7 N.Y.3d 742, 819 N.Y.S.2d 876, 853 N.E.2d 247 [2006]).
Defendant next contends that, as a result of unconstitutional law enforcement conduct, evidence obtained on the date of his arrest—specifically, his statements and a gun—should have been suppressed as fruit of the poisonous tree. In particular, defendant contends that a law enforcement SWAT team violated his constitutional rights when it broke down the fence surrounding the apartment building where de- fendant had been an overnight guest of a tenant, directed him to exit the residence, and coerced the tenant into consenting to a search of the apartment, during which officers found the gun used in the shooting hidden in a toilet tank. Defendant also contends that his constitutional rights were violated because law enforcement officers intentionally avoided obtaining an arrest warrant in order to skirt New York’s indelible right to counsel rules (see NY Const, art I, § 6; see generally People v. Doll. 21 N.Y.3d 665, 671-672, 975 N.Y.S.2d 721, 998 N.E.2d 384 [2013], rearg denied 22 N.Y.3d 1053, 981 N.Y.S.2d 359, 4 N.E.3d 371 [2014], cert denied 572 U.S. 1022, 134 S.Ct. 1552, 188 L.Ed.2d 568 [2014]; People v. Bing, 76 N.Y.2d 331, 338-339, 559 N.Y.S.2d 474, 558 N.E.2d 1011 [1990], rearg denied 76 N.Y.2d 890, 561 N.Y.S.2d 551, 562 N.E.2d 876 [1990]).
[3] As a preliminary matter, we conclude that, inasmuch as defendant’s statement "was not admitted into evidence … [,] defendant’s contention that the statement was the fruit of [an] unlawful [search or] arrest is purely academic" (People v. Wilson. 131 A.D.2d 526, 526, 516 N.Y.S.2d 259 [2d Dept. 1987], lv denied 70 N.Y.2d 719, 519 N.Y.S.2d 1055, 513 N.E.2d 1323 [1987], reconsideration denied 70 N.Y.2d 939, 524 N.Y.S.2d 691, 519 N.E.2d 637 [1987]). We therefore do not address any issues related to the statement.
[4, 5] We reject defendant’s contention that his right to counsel was violated when the officers did not first obtain an arrest warrant inasmuch as "there [i]s nothing illegal about the police going to [a] defendant’s apartment and requesting that he [or she] voluntarily come out" (People v. Garvin, 30 N.Y.3d 174, 180, 66 N.Y.S.3d 161, 88 N.E.3d 319 [2017], cert denied — U.S. —, 139 S.Ct. 57, 202 L.Ed.2d 20 [2018] [internal quotation marks omitted]).
[6–9] As defendant correctly concedes, he failed to preserve for our review his contention that the law enforcement SWAT team’s incursion into the curtilage of the apartment building constituted a warrantless entry into a protected space (see People v. Hayes, 185 A.D.3d 1419, 1420, 127 N.Y.S.3d 217 [4th Dept. 2020], lv denied 35 N.Y.3d 1113, 133 N.Y.S.3d 521, 158 N.E.3d 538 [2020]; People v. Guerrero, 151 A.D.3d 1875, 1875-1876, 54 N.Y.S.3d 354 [4th Dept. 2017], lv denied 30 N.Y.3d 949, 67 N.Y.S.3d 133, 89 N.E.3d 523 [2017]), and we decline to exercise our power to review the merits of 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 he was denied effective assistance of counsel based on defense counsel’s failure to raise that issue inasmuch as defendant failed to demonstrate that his "underlying contention would be meritorious upon appellate review’ " (People v. Bloom, 149 A.D.3d 1462, 1463, 52 N.Y.S.3d 759 [4th Dept. 2017], lv denied 30 N.Y.3d 947, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017]). A fenced-in yard is part of the curtilage of a home, and warrantless entry into that area is, subject to certain exceptions, a violation of the Fourth Amendment (see People v. Morris, 126 A.D.3d 813, 814, 4 N.Y.S.3d 305 [2d Dept. 2015], lv denied 25 N.Y.3d 1168, 15 N.Y.S.3d 300, 36 N.E.3d 103 [2015]; see also United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 [1987]). New York has recognized that a person who has standing to challenge the search of an apartment also has standing to challenge a warrantless entry onto the apartment’s curtilage (see People v. Hill, 153 A.D.3d 413, 416, 60 N.Y.S.3d 23 [1st Dept. 2017], affd 33 N.Y.3d 1076, 104 N.Y.S.3d 598, 128 N.E.3d 676 [2019]), but federal courts have recognized that "when considering what counts as curtilage, courts have distinguished single-unit and multi-unit buildings and that [i]n a modern urban multifamily apartment house, the area within the curtilage is necessarily more limited than in the case of a rural dwelling subject to one owner’s control" (United States v. Wills, 634 F.Supp.3d 14, 19 [D. Conn. 2022] [internal quotation marks omitted]; see United States v. Arboleda, 633 F.2d 985, 992 [2d Cir. 1980], cert denied 450 U.S. 917, 101 S.Ct. 1362, 67 L.Ed.2d 343 [1981]). In the case of an apartment house, "a tenant’s ‘dwelling’ cannot reasonably be said to extend beyond his own apartment and perhaps any separate areas subject to his [or her] exclusive control" (Commonwealth v. Thomas, 358 Mass. 771, 775, 267 N.E.2d 489, 491 [1971]; see Arboleda, 633 F.2d at 992). Moreover, as an overnight guest, defendant’s privacy interest "could not reasonably extend beyond the interior area where he spent the night" (People v. Perretti, 278 A.D.2d 597, 599, 719 N.Y.S.2d 145 [3d Dept. 2000], lv denied 96 N.Y.2d 762, 725 N.Y.S.2d 289, 748 N.E.2d 1085 [2001]). It is questionable whether defendant would have had standing to challenge the entry into the curtilage. The evidence does not establish if the fenced-in area was particular to the tenant’s rental unit or the entire lot containing multiple buildings. Viewing the evidence, the law, and the circumstances of this case in totality and as of the time of representation, we conclude that defense counsel provided defendant with meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]). Moreover, defense counsel successfully moved to reopen the hearings to raise additional contentions that might warrant suppression (cf. People v. Rose, 129 A.D.3d 1681, 1632, 13 N.Y.S.3d 730 [4th Dept. 2015], lv denied 27 N.Y.3d 1005, 38 N.Y.S.3d 114, 59 N.E.3d 1226 [2016]).
[10–12] Defendant further contends that he was improperly arrested in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). As an overnight guest of the apartment, defendant had standing to raise the Payton challenge (see Minnesota, v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 [1990]; see also People v. Carey, 162 A.D.3d 1476, 1477, 79 N.Y.S.3d 411 [4th Dept. 2018], lv denied 32 N.Y.3d 936, 84 N.Y.S.3d 862, 109 N.E.3d 1162 [2018]; but see People v. Ortiz, 83 N.Y.2d 840, 842-843, 611 N.Y.S.2d 500, 633 N.E.2d 1104 [1994]). An arrest outside of a residence can, in certain situations, constitute a Payton violation (see Garvin, 30 N.Y.3d at 209, 66 N.Y.S.3d 161, 88 N.E.3d 319 [Rivera, J., dissenting]; see also Fisher v. City of San Jose, 558 F.3d 1069, 1074-1075 [9th Cir. 2009]; United States v. Saari, 272 F.3d 804, 807-808 [6th Cir. 2001]) and, under the circumstances of this case, we conclude that there was a Payton violation. Here, the number of officers, their attire in tactical SWAT gear, and their manner of entry constitute "coercive circumstances suggesting that defendant was submitting to authority" by leaving the apartment (People v. Benton, 13 A.D.3d 97, 97, 786 N.Y.S.2d 446 [1st Dept. 2004], lv denied 4 N.Y.3d 761, 792 N.Y.S.2d 4, 825 N.E.2d 136 [2005]; cf. People v. Minley, 68 N.Y.2d 952, 953-954, 510 N.Y.S.2d 87, 502 N.E.2d 1002 [1986]; see generally Kaupp v. Texas, 538 U.S. 626, 631, 123 S.Ct. 1843, 155 L.Ed.2d 814 [2003]). We thus conclude that defendant’s exit from the residence was " ‘a mere submission to a claim of lawful authority’ " (Kaupp, 538 U.S. at 631, 123 S.Ct. 1843) rather than a voluntary exit from the premises.
[13, 14] Nevertheless, suppression of the gun is not required. The remedy for a Payton violation is "suppression of any evidence obtained from defendant follow- ing that violation ‘unless the taint resulting from the violation has been attenuated’ " (People v. Box, 145 A.D.3d 1510, 1515, 44 N.Y.S.3d 645 [4th Dept. 2016], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017], quoting People v. Harris, 77 N.Y.2d 434, 437, 568 N.Y.S.2d 702, 570 N.E.2d 1051 [1991]), and a tenant’s "valid consent [can] attenuate[ ] any initial illegality" in the constructive entry (People v. Espinal, 161 A.D.3d 556, 558, 77 N.Y.S.3d 371 [1st Dept. 2018], lv denied 32 N.Y.3d 1064, 89 N.Y.S.3d 118, 113 N.E.3d 952 [2018]; see People v. Priest, 227 A.D.2d 574, 574-575, 643 N.Y.S.2d 375 [2d Dept. 1996], lv denied 88 N.Y.2d 992, 649 N.Y.S.2d 399, 672 N.E.2d 625 [1996]).
[15] Contrary to defendant’s contention, we conclude that the tenant’s consent was voluntarily given. The factors we review in order to determine whether a person’s consent to search is voluntary include "the temporal proximity of the consent to the arrest, the presence or absence of intervening circumstances, whether the police purpose underlying the illegality was to obtain the consent or the fruits of the search, whether the consent was volunteered or requested, whether the [person] was aware [they] could decline to consent, and particularly, the purpose and flagrancy of the official misconduct" (People v. Borges, 69 N.Y.2d 1031, 1033, 517 N.Y.S.2d 914, 511 N.E.2d 58 [1987]).
[16] Although the tenant’s consent was given close in time to defendant’s arrest, the tenant was not the subject of that arrest and, in any event, temporal proximity "is not dispositive of attenuation" (Matter of Leroy M., 16 N.Y.3d 243, 247, 919 N.Y.S.2d 484, 944 N.E.2d 1123 [2011], cert denied 565 U.S. 842, 132 S.Ct. 155, 181 L.Ed.2d 71 [2011]). The officers took time to inform the tenant about the situation, and the evidence at the suppression hearing established that they were expressing a belief that a gun might be in the residence and did not "intentionally misle[a]d her into giving consent to search" (People v. Sweat, 170 A.D.3d 1659, 1660, 96 N.Y.S.3d 448 [4th Dept. 2019]). Moreover, at the hearing, the tenant testified for the prosecution that she voluntarily consented to the search out of a desire to have a gun removed from her residence, where a minor child resided. The tenant never claimed, in or out of court, that her consent to search was anything but voluntary, and we reject defendant’s contention that the tenant’s testimony at the hearing is unworthy of belief. We thus conclude that the court properly refused to suppress the gun recovered from the residence.
[17–21] Defendant contends that the evidence is legally insufficient to establish attempted murder in the second degree and assault in the first degree and that the verdict with respect to those counts is against the weight of the evidence. We review both contentions based on the jury charge as given without objection or exception (see People v. Prindle, 16 N.Y.3d 768, 770, 919 N.Y.S.2d 491, 944 N.E.2d 1130 [2011]; People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]). Viewing the evidence in the light most favorable to the People, as we must when reviewing the legal sufficiency of the evidence (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we conclude, contrary to defendant’s contention, that the evidence with respect to those counts is legally sufficient to establish defendant’s intent to cause death (see Penal Law §§ 110.00, 125.25 [1]) and resultant serious physical injury (see § 120.10 [1]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). It is well settled that such intent " ‘may be inferred from defendant’s conduct as well as the circumstances surrounding the crime’ " (People v. Badger, 90 A.D.3d 1531, 1532, 935 N.Y.S.2d 416 [4th Dept. 2011], lv denied 18 N.Y.3d 991, 945 N.Y.S.2d 646, 968 N.E.2d 1002 [2012]) and, here, defendant fired multiple shots from close range at the SUV in which the victim was a passenger. Furthermore, viewing the evidence in light of the elements of those crimes as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict with respect to those counts is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Contrary to defendant’s final contention, the sentence, as modified, is not unduly harsh or severe.
All concur except Ogden, J., who dissents and votes to modify in accordance with the following memorandum:
I respectfully dissent. I conclude that the tenant’s consent to search the apartment was not voluntary, and even assuming, arguendo, that her consent was voluntary, I conclude that it was not sufficiently attenuated from the violation pursuant to Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) to purge the taint of the illegality.
Initially, my colleagues and I agree that defendant had standing to raise his Payton challenge (see Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 [1990]; but see People v. Ortiz, 83 N.Y.2d 840, 842-843, 611 N.Y.S.2d 500, 633 N.E.2d 1104 [1994]), and we further agree that a Payton violation occurred (cf. People v. Benton, 13 A.D.3d 97, 97-98, 786 N.Y.S.2d 446 [1st Dept. 2004], lv denied 4 N.Y.3d 761, 792 N.Y.S.2d 4, 825 N.E.2d 136 [2005]; see generally Kaupp v. Texas, 538 U.S. 626, 631, 123 S.Ct. 1843, 155 L.Ed.2d 814 [2003]).
In my view, however, the tenant’s consent was not voluntary. "Official coercion, even if deviously subtle, nullifies apparent consent" (People v. Gonzalez, 39 N.Y.2d 122,124, 383 N.Y.S.2d 215, 347 N.E.2d 575 [1976]). "Whether consent has been voluntarily given or is only a yielding to overbearing official pressure must be determined from the circumstances" (id. at 128, 383 N.Y.S.2d 215, 347 N.E.2d 575). The People bear the heavy burden of establishing that the consent was voluntary (see id.).
The record before us makes clear that the tenant was not free to leave. Immediately before the tenant gave her consent, officers—with guns drawn—ordered her to lie on the ground. She was then grabbed, handcuffed, and placed in the back of a police vehicle. While the tenant sat in the back of the police vehicle, a lieutenant stated, "You don’t want to be arrested," and when she responded, he proceeded to tell her to "just chill out." She was allowed to leave the police vehicle only after she consented to the search. Although the tenant later testified that she gave consent to search, the record concerning the events at the time of the consent "lacks support for the conclusion … that [she] voluntarily consented" to the search of her home (People v. Freeman, 29 N.Y.3d 926, 928, 50 N.Y.S.3d 30, 72 N.E.3d 565 [2017]).
Even if I could agree with my colleagues that the People met their heavy burden of establishing the voluntariness of the tenant’s consent, I would conclude that the consent was not sufficiently attenuated from the Payton violation. Contrary to the position taken by my colleagues, voluntariness is not dispositive on the issue of attenuation (see People v. Borges, 69 N.Y.2d 1031, 1033-1034, 517 N.Y.S.2d 914, 511 N.E.2d 58 [1987]).
Here, the temporal proximity of the violation and the consent does not support a finding that the consent was sufficiently attenuated (cf People v. Suarez, 137 A.D.3d 676, 677, 28 N.Y.S.3d 66 [1st Dept. 2016], lv denied 27 N.Y.3d 1139, 39 N.Y.S.3d 122, 61 N.E.3d 521 [2016]; People v. Santos, 3 A.D.3d 317, 317, 770 N.Y.S.2d 314 [1st Dept. 2004], lv denied 2 N.Y.3d 746, 778 N.Y.S.2d 471, 810 N.E.2d 924 [2004]), and there are no circumstances to support the conclusion that the tenant’s consent resulted from "an intervening independent act of a free will" (Brown v. Illinois, 422 U.S. 590, 598, 95 S.Ct. 2254, 45 L.Ed.2d 416 [1975] [internal quotation marks omitted]; see e.g. Santos, 3 A.D.3d at 317, 770 N.Y.S.2d 314). Rather, the consent was requested by officers after, as noted above, they placed the tenant on the ground while they had their guns drawn, then grabbed her, handcuffed her, and placed her in the back of a police vehicle. The People also failed to establish that the tenant was given the right to refuse.
Finally, the underlying purpose for the police conduct, although legal, is particularly flagrant and offends notions of justice. It is undisputed that the reason the police did not seek an arrest warrant in advance was because they did not want defendant’s right to counsel to attach. In other words, the police allowed defendant—a person they believed at the time to be armed and dangerous—to remain in the community for the purpose of circumventing his right to counsel. Ironically, the People on appeal insist that defendant should not be given any opportunity to ever live again in the community and must, instead, spend the rest of his life in prison without the possibility of parole.
Consequently, I conclude that County Court erred in refusing to suppress the gun. That error, however, was harmless with respect to the conviction for murder in the first degree, attempted murder in the second degree, and assault in the first degree under counts 1, 2, 5, and 6 of the indictment, all of which stem from the shooting. For those counts, the jury had, among other evidence linking defendant to the shooting, a positive identification of defendant by the victim and another eyewitness (see People v. Cotton, 184 A.D.3d 1145, 1146, 126 N.Y.S.3d 287 [4th Dept. 2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 507, 158 N.E.3d 524 [2020]). With respect to the conviction for criminal possession of a weapon in the second degree under count 9 of the indictment, which stems from defendant’s possession of the gun on the date of his arrest, there was no other evidence that defendant possessed a loaded and operable handgun on that date. Consequently, I would further modify the judgment by dismissing that count.