People v. Addison

• Decision Date: 12 November 2021
• Docket Number: 697,KA 17-01485
• Citation: 199 A.D.3d 1321,157 N.Y.S.3d 214
• Parties: The PEOPLE of the State of New York, Respondent, v. Jerel W. ADDISON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 1321

157 N.Y.S.3d 214

The PEOPLE of the State of New York, Respondent,

v.Jerel W. ADDISON, Defendant-Appellant.

697

KA 17-01485

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

Entered: November 12, 2021

MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). The conviction arises from an incident in which the police, during a traffic stop of a two-door vehicle driven by defendant, observed an assault rifle sticking out of a sweatshirt between the front and back seats, and eventually recovered the assault rifle and ammunition from the vehicle upon apprehending defendant and his codefendant passenger after they attempted to flee in the vehicle and then on foot. We affirm.

Defendant contends that the traffic stop was unlawful and, therefore, Supreme Court erred in refusing to suppress evidence obtained as a result thereof. We reject that contention. It is well settled that, "where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate [the state or federal constitutions, and] ... neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant" ( People v. Robinson , 97 N.Y.2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ; see Whren v. United States , 517 U.S. 806, 812-813, 116 S.Ct. 1769, 135 L.Ed.2d 89 [1996] ; People v. Hinshaw , 35 N.Y.3d 427, 430-431, 132 N.Y.S.3d 90, 156 N.E.3d 812 [2020] ; People v. Howard , 129 A.D.3d 1469, 1470, 12 N.Y.S.3d 404 [4th Dept. 2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 605, 40 N.E.3d 583 [2015], reconsideration denied 26 N.Y.3d 1089, 23 N.Y.S.3d 645, 44 N.E.3d 943 [2015] ). Moreover, "the credibility determinations of the suppression court are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record" ( Howard , 129 A.D.3d at 1470, 12 N.Y.S.3d 404 [internal quotation marks omitted]).

Here, affording great deference to the court's resolution of credibility issues at the suppression hearing (see generally People v. Prochilo , 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ), we conclude that "the record supports the court's finding that the police officer[s] lawfully stopped defendant's [vehicle] for crossing the [double yellow center] line in violation of Vehicle and Traffic Law §[ § 1120 (a) and] 1128 (a)" ( People v. Eron , 119 A.D.3d 1358, 1359, 989 N.Y.S.2d 559 [4th Dept. 2014], lv denied 24 N.Y.3d 1083, 1 N.Y.S.3d 10, 25 N.E.3d 347 [2014] ; see People v. Lewis , 147 A.D.3d 1481, 1481, 47 N.Y.S.3d 193 [4th Dept. 2017] ; People v. Wohlers , 138 A.D.2d 957, 957, 526 N.Y.S.2d 290 [4th Dept. 1988] ). The officers’ testimony at the suppression hearing established that they had probable cause to believe that defendant violated those statutes when, just after 1:00 a.m. on an unobstructed roadway with no bicyclists or other impediments to travel present, they observed the vehicle defendant was driving briefly cross over the double yellow center line into the oncoming lane by as much as six inches before returning to its lane (see Lewis , 147 A.D.3d at 1481, 47 N.Y.S.3d 193 ; People v. Twoguns , 108 A.D.3d 1091, 1093, 969 N.Y.S.2d 337 [4th Dept. 2013], lv denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ; People v. Ogden , 250 A.D.2d 1001, 1001, 673 N.Y.S.2d 249 [3d Dept. 1998] ; Wohlers , 138 A.D.2d at 957, 526 N.Y.S.2d 290 ).

Contrary to defendant's contention and the dissent's assertion, we also conclude that "[t]he police officer[s’] testimony at the suppression hearing does not have all appearances of having been patently tailored to nullify constitutional objections ..., and was not so inherently incredible or improbable as to warrant disturbing the ... court's determination of credibility" ( People v. Walters , 52 A.D.3d 1273, 1274, 860 N.Y.S.2d 710 [4th Dept. 2008], lv denied 11 N.Y.3d 795, 866 N.Y.S.2d 622, 896 N.E.2d 108 [2008] [internal quotation marks omitted]; see People v. Jemison , 158 A.D.3d 1310, 1310-1311, 70 N.Y.S.3d 721 [4th Dept. 2018], lv denied 31 N.Y.3d 1083, 79 N.Y.S.3d 105, 103 N.E.3d 1252 [2018] ; Howard , 129 A.D.3d at 1470, 12 N.Y.S.3d 404 ). First, despite being confronted upon the reopening of the suppression hearing with an audio recording of police communications in which one of the officers used slightly different terminology when describing the position of the vehicle in relation to the center line, the officers maintained that they had, in fact, initiated the traffic stop after observing the vehicle cross over the center line. We conclude that the court was entitled to determine, on this record, that the description on the audio recording could reasonably be interpreted as being consistent with the officers’ testimony, and thus "[t]here is no basis for disturbing the court's credibility determination[ with respect to] its resolution of any [purported] inconsistencies between [the officers’] testimony and [the] recording" ( People v. Brown , 14 A.D.3d 356, 356, 789 N.Y.S.2d 106 [1st Dept. 2005], lv denied 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325 [2005]).

Second, we reject defendant's related contention and the dissent's assertion that the officers’ suppression hearing testimony should be discredited, and thus that the traffic stop should be deemed unlawful, because the officers failed to disclose that they also had a pretextual reason for stopping the vehicle based on information from a confidential informant conveyed to them by another officer in an earlier phone call. The officers acknowledged when the suppression hearing was reopened that they had failed to disclose in their reports or during their prior testimony that they had a pretextual reason for stopping the vehicle based on information from a confidential informant that a firearm may have been in the vehicle. Nonetheless, one of the officers offered a credible explanation for that initial nondisclosure and the other explained that, consistent with their prior testimony, the officers had not received a "call for service," i.e., a citizen complaint via 911, prior to the traffic stop but, rather, had received a phone call from another officer. We conclude on this record that the officers’ testimony "was not so inherently incredible or improbable as to warrant disturbing the ... court's determination of credibility" after it was presented with the initial omissions and subsequent explanations ( Walters , 52 A.D.3d at 1274, 860 N.Y.S.2d 710 [internal quotation marks omitted]; see generally People v. Rivera , 68 N.Y.2d 786, 787-788, 506 N.Y.S.2d 854, 498 N.E.2d 418 [1986] ; People v. Mayes , 90 A.D.2d 879, 880, 456 N.Y.S.2d 531 [3d Dept. 1982] ).

Defendant's challenge to the legal sufficiency of the evidence lacks merit. Viewing the evidence in the light most favorable to the People (see People v. Diaz , 15 N.Y.3d 764, 765, 907 N.Y.S.2d 152, 933 N.E.2d 751 [2010] ), we conclude that the evidence is legally sufficient to establish that defendant constructively possessed the assault rifle, i.e., that he "exercised ‘dominion or control’ over the [firearm] by a sufficient level of control over the area in which the [firearm was] found" ( People v. Manini , 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ; see People v. Thomas , 165 A.D.3d 1636, 1636, 85 N.Y.S.3d 322 [4th Dept. 2018], lv denied 32 N.Y.3d 1129, 93 N.Y.S.3d 267, 117 N.E.3d 826 [2018], cert denied ––– U.S. ––––, 140 S. Ct. 257, 205 L.Ed.2d 161 [2019] ; see generally Diaz , 15 N.Y.3d at 765, 907 N.Y.S.2d 152, 933 N.E.2d 751 ). Contrary to defendant's assertion, there was sufficient evidence that the assault rifle was loaded inasmuch as the firearm was possessed by defendant "who, at the same time, possesse[d] a quantity of ammunition [that could] be used to discharge such firearm" ( Penal Law § 265.00 [15] ; see People v. Tillery , 60 A.D.3d 1203, 1205-1206, 875 N.Y.S.2d 343 [3d Dept. 2009], lv denied 12 N.Y.3d 860, 881 N.Y.S.2d 672, 909 N.E.2d 595 [2009] ). In addition, we conclude that there was sufficient evidence that defendant's possession of the firearm was knowing (see People v. Muhammad , 16 N.Y.3d 184, 188, 920 N.Y.S.2d 760, 945 N.E.2d 1010 [2011] ; Thomas , 165 A.D.3d at 1636, 85 N.Y.S.3d 322 ; see generally People v. Diaz , 24 N.Y.3d 1187, 1190, 3 N.Y.S.3d 745, 27 N.E.3d 459 [2015] ).

We reject defendant's contention that the verdict is against the weight of the evidence. Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that, although a different verdict would not have been unreasonable, the jury did not fail to give the evidence the weight it should be accorded (see People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; Thomas , 165 A.D.3d at 1636-1637, 85 N.Y.S.3d 322 ; Tillery , 60 A.D.3d at 1205-1206, 875 N.Y.S.2d 343 ).

Defendant next contends that the court erred by submitting to the jury, as a lesser included offense of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), the crime of criminal possession of a firearm ( § 265.01-b [1] ) as advocated by the prosecutor instead of criminal possession of a weapon in the fourth degree ( § 265.01 [1] ) as requested by defendant. Contrary to defendant's contention, we conclude that any error by the court in that regard is harmless (see People v....