People v. Barthel

• Citation: 199 A.D.3d 32,153 N.Y.S.3d 382
• Decision Date: 26 August 2021
• Docket Number: KA 18-00164,493
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph T. BARTHEL, Defendant-Appellant. (Appeal No. 1.)
• Court: New York Supreme Court Appellate Division

199 A.D.3d 32
153 N.Y.S.3d 382

The PEOPLE of the State of New York, Respondent,
v.
Joseph T. BARTHEL, Defendant-Appellant. (Appeal No. 1.)

493
KA 18-00164

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

Entered: August 26, 2021

BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

OPINION AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the directive that the sentence imposed run consecutively to the sentence imposed under indictment No. 2015-0954, and as modified the judgment is affirmed.

Opinion by NeMoyer, J.:

199 A.D.3d 34

A sentencing court has no power to dictate whether its sentence will run concurrently or consecutively to another sentence that has not yet been imposed. When a sentencing court violates that rule and purports to direct the relationship between its present sentence and an anticipated forthcoming sentence, the proper remedy is usually to strike the improper directive, not to remit for a new sentencing proceeding at which the court could exercise the very power it lacked originally.

FACTS

On the night of August 16, 2015, five men – armed with a loaded AK-47 rifle – got into a vehicle and went on a brutal crime spree across the west side of the City of Rochester. The AK-47 accompanied the crew in the vehicle's passenger compartment; given its size, the firearm would have been readily apparent to any person inside the vehicle. During the first installment of their crime spree, several crew members brandished the AK-47 as they robbed and beat a man on Aberdeen Street. In another incident, a crew member used the AK-47 to shoot into a home on Flanders Street. And in a third

199 A.D.3d 35

episode, a different crew member aimed the AK-47 out of the car and shot a female pedestrian on Genesee Street multiple times, nearly killing her.

Defendant was among the five men implicated in the foregoing crime spree, and they were indicted on various counts of criminal possession of a weapon (CPW), robbery, reckless endangerment, attempted murder, and assault. Defendant was tried separately by County Court (Randall, J.) without a jury, and he was ultimately convicted of only one count of CPW in the second degree ( Penal Law § 265.03 [3] ) for possessing the AK-47. County Court later explained that the CPW conviction was based on the doctrine of constructive possession.

County Court thereafter sentenced defendant on the CPW conviction to, inter alia, a determinate term of 5½ years’ imprisonment. Notably, County Court directed

153 N.Y.S.3d 386

that such sentence run consecutively to "whatever" sentence was eventually imposed on an unrelated burglary charge to which defendant had pleaded guilty in Supreme Court (Renzi, J.). One day after County Court sentenced defendant on the CPW conviction, Supreme Court sentenced defendant on the burglary conviction to, inter alia, a determinate term of 9 years’ imprisonment. Supreme Court, however, explicitly declined to specify whether the burglary sentence would run concurrently or consecutively to defendant's previously-imposed CPW sentence.

Defendant now appeals from County Court's judgment.¹

DISCUSSION

I

A person is guilty of CPW in the second degree as charged in the indictment when he or she "possesses any loaded firearm" ( Penal Law § 265.03 [3] ). Defendant now argues that the verdict convicting him of that crime is not supported by legally sufficient evidence and is against the weight of the evidence.

Defendant's legal sufficiency argument is unpreserved for appellate review (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). With respect to the weight of the evidence, defendant does not dispute that the AK-47 at issue constituted a "loaded firearm" for purposes of Penal Law § 265.03 (3). Rather, defendant

199 A.D.3d 36

argues that the People failed to prove, beyond reasonable doubt, that he "possesse[d]" the AK-47 as required by section 265.03 (3). We disagree; the verdict is not against the weight of the evidence with respect to the possessory element of CPW in the second degree.

A person may "possess a firearm through actual, physical possession or through constructive possession" ( People v. McCoy , 169 A.D.3d 1260, 1262, 95 N.Y.S.3d 441 [3d Dept. 2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019] ). Contrary to the People's intimation, the absence of a formal constructive possession instruction at this bench trial does not preclude us from upholding defendant's CPW conviction on a constructive possession theory. "Trial judges ... ‘are presumed to know the law and to apply it in making their decisions’ " ( People v. Stewartson , 63 A.D.3d 966, 967, 883 N.Y.S.2d 51 [2d Dept. 2009], lv denied 13 N.Y.3d 749, 886 N.Y.S.2d 103, 914 N.E.2d 1021 [2009], quoting Lambrix v. Singletary , 520 U.S. 518, 532 n. 4, 117 S.Ct. 1517, 137 L.Ed.2d 771 [1997] ; see People v. Chestnut , 19 N.Y.3d 606, 611 n. 2, 950 N.Y.S.2d 287, 973 N.E.2d 697 [2012] ); thus, when the judgment on appeal was rendered at a bench trial, the Appellate Division exercises its unique factual review power (see CPL 470.15 [5] ) by independently weighing the evidence in light of the challenged elements of the crime as defined by law (see People v. Jones , 192 A.D.3d 1656, 1657, 144 N.Y.S.3d 276 [4th Dept. 2021], lv denied 37 N.Y.3d 957, 147 N.Y.S.3d 505, 170 N.E.3d 379 [2021] ; People v. Ponder , 191 A.D.3d 1409, 1410, 141 N.Y.S.3d 618 [4th Dept. 2021] ; People v. Holes , 118 A.D.3d 1466, 1467-1468, 988 N.Y.S.2d 375 [4th Dept. 2014] ; see generally People v. Delamota , 18 N.Y.3d 107, 116-117, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The doctrine of constructive possession, in turn, is part of the statutory definition of the possessory element at issue in this appeal (see

153 N.Y.S.3d 387

Penal Law § 10.00 [8] ). Indeed, constructive possession is a deeply-rooted legal paradigm through which the core possessory element may be proven in any prosecution for a possessory offense (see People v. Sierra , 45 N.Y.2d 56, 60, 407 N.Y.S.2d 669, 379 N.E.2d 196 [1978] ; People ex rel. Darling v. Warden of City Prison , 154 App. Div. 413, 414 [1st Dept. 1913] ). It follows that, when reviewing a possessory conviction rendered at a bench trial, the Appellate Division properly considers the doctrine of constructive possession in analyzing a weight-of-the-evidence argument directed at the core possessory element, irrespective of whether the trial court formally instructed itself on that doctrine.²

"To meet their burden of proving defendant's constructive possession of [a gun], the People had to establish that [he]

199 A.D.3d 37

exercised dominion or control over [the gun] by a sufficient level of control over the area in which ... the gun was located" ( People v. Lawrence , 141 A.D.3d 1079, 1082, 34 N.Y.S.3d 827 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] [emphasis added and internal quotation marks omitted]; see People v. Wilkins , 104 A.D.3d 1156, 1156, 960 N.Y.S.2d 776 [4th Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1287 [2013]; People v. Ortiz , 61 A.D.3d 779, 780, 877 N.Y.S.2d 175 [2d Dept. 2009], lv denied 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020 [2009] ; People v. King , 264 A.D.2d 428, 429, 693 N.Y.S.2d 243 [2d Dept. 1999], lv denied 94 N.Y.2d 881, 705 N.Y.S.2d 13, 726 N.E.2d 490 [2000] ). Here, it is undisputed that the subject AK-47 was plainly visible inside the passenger compartment of the vehicle that transported the group of men along their crime spree on the night of August 16, 2015. It is also undisputed that defendant drove that vehicle – with the gun inside – at one point during the crime spree (namely, to and from the Aberdeen Street robbery). The trial evidence thus establishes, beyond a reasonable doubt, that defendant "exercised dominion or control over [the subject AK-47] by a sufficient level of control over the area" – i.e., the vehicle – "in which ... the gun was located" ( Lawrence , 141 A.D.3d at 1082, 34 N.Y.S.3d 827 [internal quotation marks omitted]), and it necessarily follows that County Court correctly convicted defendant of CPW in the second degree on a theory of constructive possession (see Penal Law § 10.00 [8] ; People v. Watkins , 151 A.D.3d 1913, 1914, 57 N.Y.S.3d 841 [4th Dept. 2017], lv denied 30 N.Y.3d 984, 67 N.Y.S.3d 586, 89 N.E.3d 1266 [2017] ; People v. Nelson , 139 A.D.3d 436, 437, 29 N.Y.S.3d 374 [1st Dept. 2016], lv denied 28 N.Y.3d 972, 43 N.Y.S.3d 260, 66 N.E.3d 6 [2016] ; People v. Ward , 104 A.D.3d 1323, 1324, 960 N.Y.S.2d 839 [4th Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1286 [2013] ). Contrary to defendant's...