Opinion
2019-03802 Ind. No. 2454/16
08-31-2022
The PEOPLE, etc., respondent, v. Jahaad WILLIAMS, appellant.
Jonathan Rosenberg, PLLC, Brooklyn, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Marina Arshakyan of counsel), for respondent.
Jonathan Rosenberg, PLLC, Brooklyn, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Marina Arshakyan of counsel), for respondent.
BETSY BARROS, J.P., REINALDO E. RIVERA, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (John Latella, J.), rendered March 4, 2019, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, unlawful possession of marihuana, operating a motor vehicle with a tinted window, failing to give a required signal, and standing or parking a vehicle in a bus stop, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Charles S. Lopresto, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the appeal from so much of the judgment as convicted the defendant of unlawful possession of marihuana is dismissed as academic; and it is further,
ORDERED that the judgment is affirmed insofar as reviewed.
"The defendant's conviction of unlawful possession of marihuana became a nullity by operation of law, independently of any appeal, and without requiring any action by this court, pursuant to CPL 160.50(5) (as added by L 2019, ch 131 [eff Aug. 28, 2019])" ( People v. Hay, 207 A.D.3d 748, 749, 170 N.Y.S.3d 914 [2d Dept.] [internal quotation marks and brackets omitted]). "Consequently, the appeal from so much of the judgment as convicted the defendant of unlawful possession of marihuana must be dismissed as academic" ( 207 A.D.3d at 749, 170 N.Y.S.3d 914 ).
The Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence recovered from the defendant's vehicle. A vehicle may be searched without a warrant, inter alia, if there is probable cause to believe that the vehicle contains evidence of the offense for which the defendant is being arrested (see Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 ; Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 ; People v. Blasich, 73 N.Y.2d 673, 543 N.Y.S.2d 40, 541 N.E.2d 40 ; People v. Singletary, 156 A.D.3d 731, 64 N.Y.S.3d 908 ; People v. Washington, 108 A.D.3d 578, 970 N.Y.S.2d 36 ). Here, a police officer possessed probable cause to stop the defendant's vehicle because he observed the defendant commit a traffic infraction by pulling into a bus stop lane without signaling (see People v. Wright, 98 N.Y.2d 657; People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 ; People v. Burgos, 198 A.D.3d 672, 156 N.Y.S.3d 213 ; People v. Graham, 54 A.D.3d 1056, 865 N.Y.S.2d 259 ; People v. Guzman, 153 A.D.2d 320, 551 N.Y.S.2d 709 ). Upon approaching the defendant's vehicle, the officer asked the defendant to roll down the windows. When the windows were rolled down, the officer smelled a strong odor of marijuana coming from inside the vehicle and, upon looking into the window, observed what looked like loose marijuana and two glassine envelopes of heroin on the rear floor of the vehicle. The officer was justified in seizing the loose marijuana and the glassine envelopes of heroin, as they were in plain view (see People v. Alexander, 161 A.D.3d 762, 76 N.Y.S.3d 577 ; People v. Frazier, 33 A.D.3d 934, 826 N.Y.S.2d 292 ; People v. Diaz, 194 A.D.2d 688, 599 N.Y.S.2d 111 ). Furthermore, the odor of marijuana coming from the vehicle together with the officer's observations were sufficient to constitute probable cause to search the vehicle and its occupants (see People v. Garcia, 175 A.D.3d 1319, 109 N.Y.S.3d 165 ; People v. Singletary, 156 A.D.3d 731, 64 N.Y.S.3d 908 ; People v. Singleton, 139 A.D.3d 208, 29 N.Y.S.3d 358 ; People v. McCaw, 137 A.D.3d 813, 27 N.Y.S.3d 574 ). Thus, the officer rightfully opened the glove box and seized the gun found therein (see People v. Alexander, 161 A.D.3d 762, 76 N.Y.S.3d 577 ; People v. Frazier, 33 A.D.3d 934, 826 N.Y.S.2d 292 ; People v. Diaz, 194 A.D.2d 688, 599 N.Y.S.2d 111 ).
The defendant failed to preserve for appellate review his challenge to the chain of custody of the gun and ammunition recovered by the police from the glove box (see CPL 470.05[2] ). In any event, the officers’ testimony at trial regarding the transporting of the defendant's vehicle to the precinct station, the securing and vouchering of the gun and ammunition in a safe, and the transferring of the gun and ammunition to the ballistics lab was sufficient to establish that there was no break in the chain of custody as to the gun or ammunition (see People v. Julian, 41 N.Y.2d 340, 392 N.Y.S.2d 610, 360 N.E.2d 1310 ; People v. Williams, 5 A.D.3d 705, 774 N.Y.S.2d 722 ; People v. Rodriguez, 238 A.D.2d 447, 657 N.Y.S.2d 344 ; People v. Donovan, 141 A.D.2d 835, 530 N.Y.S.2d 174 ).
Contrary to the defendant's contention, the prosecutor's questions to him on cross-examination properly addressed his direct testimony and inferences drawn therefrom (see People v. Crandall, 67 N.Y.2d 111, 117, 500 N.Y.S.2d 635, 491 N.E.2d 1092 ; People v. Terry, 179 A.D.2d 351, 577 N.Y.S.2d 623 ).
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in refusing to grant him a one-week adjournment to secure the attendance of defense witnesses, because the defendant failed to establish that the witnesses would be available to testify even at a later date or that they would have relevant testimony (see People v. Becoats, 71 A.D.3d 1578, 897 N.Y.S.2d 820, affd 17 N.Y.3d 643, 934 N.Y.S.2d 737, 958 N.E.2d 865 ; People v. Jackson, 41 A.D.3d 498, 838 N.Y.S.2d 108 ).
The defendant failed to preserve for appellate review his challenge to the legal sufficiency of the evidence supporting his conviction of criminal possession of a weapon in the second degree (see CPL 470.05[2] ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of that crime beyond a reasonable doubt. 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, 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, 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 as to that crime 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 ).
Because the defendant did not object to the Supreme Court's initial approach to the handling of a note from a juror, his contention that the court did not meaningfully respond to the note is unpreserved for appellate review (see CPL 470.05[2] ; People v. Smith, 255 A.D.2d 404, 680 N.Y.S.2d 556 ; People v. Davis, 223 A.D.2d 376, 636 N.Y.S.2d 294 ). In any event, the defendant was afforded a meaningful opportunity to suggest a response, and the court responded appropriately (cf. People v. O'Rama, 78 N.Y.2d 270, 574 N.Y.S.2d 159, 579 N.E.2d 189 ). Furthermore, the defendant suffered no discernible prejudice from the court's handling of the note (see People v. Battle, 15 A.D.3d 413, 414, 790 N.Y.S.2d 477 ; People v. Mitchell, 2 A.D.3d 145, 768 N.Y.S.2d 204 ; People v. Hurtido, 260 A.D.2d 401, 686 N.Y.S.2d 312 ; People v. Beckham, 174 A.D.2d 748, 571 N.Y.S.2d 775 ).
Contrary to the defendant's contention, the Supreme Court properly denied that branch of his motion which was pursuant to CPL 330.30 to set aside the verdict on the ground of newly discovered evidence. After the trial, the assistant district attorney (hereinafter ADA) in this action informed defense counsel that one of the prosecution's witnesses was found to have given false testimony in an unrelated action prosecuted by a different ADA. Even assuming that the knowledge of the prior ruling in the unrelated action can be imputed to the ADA in this action, the newly discovered evidence did not entitle the defendant to a new trial because the evidence was merely impeaching, would not have changed the outcome of the trial, and was not material to the defendant's defense that one of his passengers put the gun in the glove box (see People v. Salemi, 309 N.Y.208, 128 N.E.2d 377 ; People v. Williams, 19 A.D.3d 228, 798 N.Y.S.2d 3 ). Furthermore, the court properly denied that branch of the defendant's motion which was pursuant to CPL 330.30 to set aside the verdict on the ground that the jury was coerced into reaching a verdict. The record establishes that in the course of deliberations, the jury sent two notes indicating that it was having trouble reaching a unanimous vote, but the notes in no way indicated that the jury was deadlocked. The court's supplemental instruction encouraged the jury to continue deliberating, but did not coerce, compel, or put untoward pressure on the jury to reach an agreement (see People v. Morgan, 28 N.Y.3d 516, 46 N.Y.S.3d 493, 68 N.E.3d 1224 ; People v. Ford, 78 N.Y.2d 878, 573 N.Y.S.2d 442, 577 N.E.2d 1034 ; People v. Pagan, 45 N.Y.2d 725, 408 N.Y.S.2d 473, 380 N.E.2d 299 ). In addition, the court properly denied that branch of the defendant's motion which was pursuant to CPL 330.30 to set aside the verdict on the ground of legal insufficiency because the defendant failed to preserve for appellate review that contention (see CPL 330.30[1] ; People v. Carter, 63 N.Y.2d 530, 483 N.Y.S.2d 654, 473 N.E.2d 6 ; People v. Josey, 204 A.D.2d 571, 612 N.Y.S.2d 170 ), and properly denied that branch of the defendant's motion which was pursuant to CPL 330.30 to set aside the verdict as factually insufficient because such an argument is not cognizable by the court (see CPL 330.30[1] ; People v. Taylor, 187 A.D.3d 58, 129 N.Y.S.3d 469 ).
Contrary, to the defendant's contention, he was not deprived of the effective assistance of counsel. Defense counsel made appropriate pretrial motions (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ; People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 ), made a coherent opening statement, appropriately cross-examined the People's witnesses, presented a coherent defense, and made a cogent closing statement (see People v. Arroyo, 128 A.D.3d 843, 9 N.Y.S.3d 137 ; People v. Jenkins, 103 A.D.3d 753, 958 N.Y.S.2d 904 ). Viewing the record in its entirety, the defendant received meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ).
BARROS, J.P., RIVERA, WOOTEN and DOWLING, JJ., concur.