People v. Abdullah

• Decision Date: 23 June 2022
• Docket Number: 110271
• Parties: The PEOPLE of the State of New York, Respondent, v. Ramadan B. ABDULLAH, Appellant.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 1340

170 N.Y.S.3d 352

The PEOPLE of the State of New York, Respondent,

v.Ramadan B. ABDULLAH, Appellant.

110271

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 28, 2022

Decided and Entered: June 23, 2022

G. Scott Walling, Slingerlands, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Benjamin E. Holwitt of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered February 8, 2018, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree (six counts), criminal possession of a weapon in the third degree (nine counts) and petit larceny.

In May 2017, defendant activated a security alarm while attempting to exit a sporting goods store. The police arrived and, after holding defendant for approximately half an hour, arrested him for stealing ammunition. Defendant was transported to the police station where a search of his backpack revealed a slungshot. Upon learning of defendant's arrest, defendant's granddaughter – with whom he was staying – turned over his belongings to the police. An inventory search of said items revealed a firearm. A search of a storage unit leased by defendant revealed four firearms, ammunition and three additional slungshots.

Defendant was then charged by a 16–count indictment with six counts of criminal possession of a weapon in the second degree, nine counts of criminal possession of a weapon in the third degree and one count of petit larceny. Following a jury trial, defendant was convicted as charged. He was sentenced to concurrent prison terms of four years, to be followed by three years of postrelease supervision, for each of his convictions of criminal possession of a weapon in the second degree (counts 1, 2, 4, 6, 8 and 10), 2 to 6 years for each of his convictions of criminal possession of a weapon in the third degree regarding the firearms (counts 3, 5, 7, 9 and 11) and one year in jail on each of his convictions for criminal possession of a weapon in the third degree related to the slungshots (counts 12–15) as well as the petit larceny conviction (count 16). Defendant appeals.

Initially, defendant contends that the convictions are not supported by legally sufficient evidence and are against the weight of the evidence. Defendant preserved his legal sufficiency challenge regarding the slungshots (counts 12–15) by moving to dismiss these counts for failure to provide evidence that defendant knowingly possessed the slungshots; i.e., that he did not know the definition of a slungshot, its character or that it was a weapon. However, defendant's challenges to the legal sufficiency of the evidence related to the convictions for petit larceny and possessing the firearms are unpreserved given that he made only a generalized motion to dismiss at the close of the People's case and failed to renew at the close of his own case (see People v. Hodgins, 202 A.D.3d 1377, 1378–1379, 162 N.Y.S.3d 569 [2022] ; People v. Baber, 182 A.D.3d 794, 795, 123 N.Y.S.3d 222 [2020], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 365, 152 N.E.3d 1167 [2020] ). "Nevertheless, in reviewing defendant's argument that the verdict is against the weight of the evidence, this Court must necessarily ensure that the People established each element of the crime[s]" ( People v. Sorrell, 196 A.D.3d 923, 923, 151 N.Y.S.3d 534 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1029, 153 N.Y.S.3d 408, 175 N.E.3d 433 [2021] ; see People v. Cooper, 196 A.D.3d 855, 858, 151 N.Y.S.3d 250 [2021], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 690, 181 N.E.3d 1118 [2022] ).

"When assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime[s] proved beyond a reasonable doubt. In reviewing whether a conviction is supported by the weight of the evidence, we decide whether, based on all the credible evidence, a different finding would not have been unreasonable, and then, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn therefrom" ( People v. Bryant, 200 A.D.3d 1483, 1484, 161 N.Y.S.3d 399 [2021] [internal quotation marks, brackets and citations omitted], lv granted 38 N.Y.3d 931, 164 N.Y.S.3d 39, 184 N.E.3d 860 [2022] ; see People v. Butkiewicz, 175 A.D.3d 792, 793, 107 N.Y.S.3d 181 [2019], lv denied 34 N.Y.3d 1076, 116 N.Y.S.3d 165, 139 N.E.3d 823 [2019] ).

As relevant here, a person is guilty of criminal possession of a weapon in the second degree when such person possesses five or more firearms (count 1) or possesses a loaded firearm and such possession takes place outside of such person's home or place of business (counts 2, 4, 6, 8 and 10) (see Penal Law § 265.03[2] and [3] ). The definition of a firearm includes any pistol or revolver (see Penal Law § 265.00[3][a] ). " ‘Loaded firearm’ means any firearm loaded with ammunition or ... which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm" ( Penal Law § 265.00[15] ). For a conviction of criminal possession of a weapon in the third degree (counts 3, 5, 7, 9, 11 and 12–15), the People must prove that defendant, having previously been convicted of a crime, committed the offense of criminal possession of a weapon in the fourth degree (see Penal Law § 265.02[1] ), which requires, as relevant here, proof that defendant knowingly possessed a firearm or slungshot (see Penal Law § 265.01[1] ). While several of the weapons listed in Penal Law § 265.01(1) are defined in Penal Law § 265.00, a "slungshot" is not. "In such a circumstance, courts should give the term its usual and commonly understood meaning" ( People v. Aragon, 28 N.Y.3d 125, 128, 42 N.Y.S.3d 646, 65 N.E.3d 675 [2016] [internal quotation marks and citations omitted]). Merriam–Webster dictionary defines a slungshot as "a striking weapon consisting of a small mass of metal or stone fixed on a flexible handle or strap" (Merriam–Webster Online Dictionary, slungshot [https://www.merriam-webster.com/dictionary/slungshot]). A person is guilty of petit larceny (count 16) when he or she steals property (see Penal Law § 155.25 ).

At trial, two employees, who were working at the sporting goods store on the day of the incident, testified. One of the employees described the location of the customer service counter as being located near the front public entrance/exit and explained that the security system consisted of sensor towers positioned on either side of every entrance and exit. She testified that defendant activated the alarm when he attempted to leave the store, and that no one else was near the entrance/exit when the alarm went off. Defendant was then asked to remove his backpack and walk by the sensor and again defendant set off the alarms when attempting to exit. Eventually the employee asked defendant to empty his pockets and, when he did so, he revealed four boxes of ammunition for which he could not produce a receipt. Defendant claimed that he had the ammunition with him when he entered the store, and that the bullets within the boxes were reloads.¹ However, she further testified that one of the boxes of ammunition had a security sticker on it and that defendant had not activated the alarms when he entered the store. Moreover, the employee stated that she and the police officers compared the ammunition to other boxes in the store and determined that the ammunition in defendant's possession was new, not reloaded. The firearms manager testified that he checked the ammunition inventory and discovered that two boxes of 9–millimeter ammunition and four boxes of .40 caliber ammunition were missing. He stated that the store did not sell reloaded ammunition and he inspected the ammunition presented at trial, opining that the ammunition was new – not reloaded.

During a conditional pretrial examination of defendant's granddaughter, she testified that defendant was visiting the Broome County area and stayed with her in May 2017. When she learned that defendant had been arrested, she packed up his bags, found ammunition in one bag, and subsequently brought all of defendant's bags to the police. Several police officers testified that, while defendant was at the sporting goods store, he told them he did not have a pistol permit, and that he owned several other guns that were located in a local storage unit. The officers testified that they found a slungshot in defendant's backpack when they performed their inventory search pursuant to his arrest. In performing a like search of the items received from defendant's granddaughter, they discovered a COP Inc. pistol and documentation bearing defendant's name. A state trooper described how he located a storage unit leased by defendant, obtained a search warrant and conducted a search of defendant's storage unit, recovering four loaded firearms, ammunition, three slungshots and identification cards bearing defendant's name. The trooper further testified that all the guns were loaded with ammunition at the time they were recovered, they were test fired and all were operable. The trooper provided instructions on how to use a slungshot – by swinging your arm, the ball would come off and hit an object and could be retrieved with the string still hooked on your hand.

Defendant testified that many years earlier he had purchased the guns outside of New York and placed them in the storage unit after he lost his home in foreclosure. He stated that he did not steal the ammunition; he had brought it with him into the store and when he attempted to...