People v. Bellamy

• Decision Date: 12 June 2014
• Citation: People v. Bellamy, 2014 NY Slip Op 4262, 118 A.D.3d 1113, 987 N.Y.S.2d 666 (N.Y. App. Div. 2014)
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. William BELLAMY, Appellant.

118 A.D.3d 1113

987 N.Y.S.2d 666

2014 N.Y. Slip Op. 04262

The PEOPLE of the State of New York, Respondent,

v.William BELLAMY, Appellant.

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

June 12, 2014.

Carolyn B. George, Albany, for appellant, and appellantpro se.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY and ROSE, JJ.

ROSE, J.

Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered November 7, 2011, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the fourth degree and criminal possession of a weapon in the third degree.

Police officers responded to a 911 call reporting a man with a gun on a city street and were informed that the suspect had entered a two-family row house.Officers approached the house and, after speaking with a female resident of the first-floor apartment through an open window, ordered her, defendant and their young son out of the building.When defendant, who was on parole at the time, came out of the house, he was identified by the 911 caller as the individual who had brandished a weapon.A security sweep of the building resulted in an officer observing a handgun located in a boot in the first floor hallway leading to defendant's apartment.Defendant's parole officer then arrived at the scene and, upon conducting a search of defendant's apartment, located—among other things—a powdery substance later determined to be heroin.Following a jury trial, defendant was convicted of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the fourth degree and criminal possession of a weapon in the third degree.County Court sentenced defendant as a persistent violent felony offender to an aggregate term of 20 years to life in prison followed by three years of postrelease supervision.He now appeals.

Defendant challenges the legal sufficiency of the evidence supporting the conviction for criminal possession of a weapon in the second degree on the ground that the People did not establish that he constructively possessed the weapon ( seePenal Law § 265.03[3] ).We are not persuaded.Constructive possession can be established by evidence that the defendant had dominion and control over the weapon or the area in which it was found ( seePeople v. Dawson,110 A.D.3d 1350, 1352, 973 N.Y.S.2d 850[2013];People v. Stewart,95 A.D.3d 1363, 1364, 943 N.Y.S.2d 302[2012],lv. denied19 N.Y.3d 1001, 951 N.Y.S.2d 477, 975 N.E.2d 923[2012] ).Exclusive access, however, is not required to sustain a finding of constructive possession ( seePeople v. Stewart,95 A.D.3d at 1364, 943 N.Y.S.2d 302;People v. Pinkney,90 A.D.3d 1313, 1314–1315, 935 N.Y.S.2d 374[2011] ).Here, the People established that defendant resided in the first-floor apartment with his girlfriend and their young son, and the loaded handgun was found in a man's boot located in a hallway leading to that apartment among shoes belonging to defendant's girlfriend and his son.The only other tenant in the building was an elderly woman who lived on the second floor.Although defendant denied ownership of the boots, he admitted that he kept some of his belongings in the hallway, and the People established the presence of his DNA on the weapon.The rational inferences to be drawn from this evidence are sufficient to support the conclusion that defendant exercised dominion and control over the weapon and the area in which it was found ( seePeople v. Pinkney,90 A.D.3d at 1314–1315, 935 N.Y.S.2d 374;People v. Robinson,72 A.D.3d 1277, 1277–1278, 898 N.Y.S.2d 365[2010],lv. denied15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903[2010] ).

Defendant's contention that the People failed to prove that the heroin found in the apartment was more than an eighth of an ounce, as required to support the conviction for criminal possession of a controlled substance in the fourth degree ( seePenal Law § 220.09[1] ), is also without merit.The People presented testimony that the substance, weighing more than five grams, had an aggregate weight over one eighth of an ounce.Defendant's claim that the substance contained only two grams of heroin is irrelevant because the crime is not based on the weight of the pure drug but on “the weight of the substance which contains the drug, irrespective of the amount of the drug in the substance”( People v. Mendoza,81 N.Y.2d 963, 965, 598 N.Y.S.2d 764, 615 N.E.2d 221[1993][internal quotation marks and citation omitted];accordPeople v. Acevedo,112 A.D.3d 985, 986, 976 N.Y.S.2d 590[2013] ).

We likewise find no merit to defendant's challenges to the pretrial suppression rulings.As an initial matter, we agree with County Court's conclusion that defendant had no standing to challenge the seizure of the weapon in the boot found in the hallway of the apartment house.Standing requires a defendant to have a legitimate expectation of privacy, which exists where a defendant manifests a subjective expectation of privacy in the place or item searched and there is an objective “expectation of privacy justifiable under the circumstances”( People v. Ramirez–Portoreal,88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207[1996] ).At the suppression hearing, the People established that the layout of the building included a single front entrance that opened into a hallway leading to defendant's apartment and containing a staircase to the second-floor apartment.Each apartment had its own separate, locked entrance and the hallway was a common area accessible to all tenants and their invitees.Under these circumstances, defendant had no reasonable expectation of privacy in the common hallway and, thus, no standing to challenge the seizure of the weapon found in the boot located there ( seePeople v. Ponder,54 N.Y.2d 160, 166, 445 N.Y.S.2d 57, 429 N.E.2d 735[1981];People v. Muldrow,273 A.D.2d 814, 815, 711 N.Y.S.2d 649[2000],lv. denied95 N.Y.2d 891, 715 N.Y.S.2d 384, 738 N.E.2d 788[2000];People v. Murray,233 A.D.2d 956, 956, 649 N.Y.S.2d 265[1996],lv. denied89 N.Y.2d 927, 654 N.Y.S.2d 729, 677 N.E.2d 301[1996] ).

Defendant also challenges the search of his apartment by his parole officer.To be considered lawful, such a search must be rationally and reasonably related to the parole officer's duty to supervise defendant( seePeople v. Huntley,43 N.Y.2d 175, 179, 401 N.Y.S.2d 31, 371 N.E.2d 794[1977];People v. Walker,80 A.D.3d 793, 794, 914 N.Y.S.2d 364[2011];People v. Burry,52 A.D.3d 856, 858, 859 N.Y.S.2d 499[2008],lv. dismissed10 N.Y.3d 956, 863 N.Y.S.2d 140, 893 N.E.2d 446[2008] ).As the evidence at the suppression hearing established that defendant's parole officer arrived on the scene after defendant had been identified as the person with a gun on the street by the 911 caller and the gun in the boot had been found, the subsequent search of his apartment to determine whether there was any further evidence of the violation of the conditions of his parole was justified ( seePeople v. Nappi,83 A.D.3d 1592, 1593–1594, 922 N.Y.S.2d 669[2011],lv. denied17 N.Y.3d 820, 929 N.Y.S.2d 808, 954 N.E.2d 99[2011];People v. Walker,80 A.D.3d at 794, 914 N.Y.S.2d 364).

Defendant's claim that the showup identification was unduly suggestive is also without merit, inasmuch as it was “conducted in close geographic and temporal proximity to the crime”( People v. Toye,107 A.D.3d 1149, 1150, 967 N.Y.S.2d 210[2013],lv. denied22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978[2014][internal quotation marks and citations omitted];accordPeople v. Stroman,107 A.D.3d 1023, 1025, 967 N.Y.S.2d 202[2013],lv. denied21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859[2013] ).Nor does the fact that defendant was identified while handcuffed and standing with a police officer render the showup unduly suggestive as a matter of law ( seePeople v. August,33 A.D.3d 1046, 1049, 822 N.Y.S.2d 334[2006],lv. denied8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620[2007];People v. Armstrong,11 A.D.3d 721, 722, 783 N.Y.S.2d 134[2004],lv. denied4 N.Y.3d 760, 792 N.Y.S.2d 4, 825 N.E.2d 136[2005] ).

Likewise, we find no basis to suppress the statements that defendant made to his girlfriend while waiting to be booked at the police department and while on a telephone line he knew was recorded ( seePeople v. Kenyon,108 A.D.3d 933, 936, 970 N.Y.S.2d 638[2013],lv. denied21 N.Y.3d 1075, 974 N.Y.S.2d 324, 997 N.E.2d 149[2013];People v. O'Hanlon,252 A.D.2d 670, 671, 675 N.Y.S.2d 404[1998],lv. denied92 N.Y.2d 951, 681 N.Y.S.2d 481, 704 N.E.2d 234[1998];People v. Davis,168 A.D.2d 565, 566, 563 N.Y.S.2d 665[1990],lv. denied77 N.Y.2d 960, 570 N.Y.S.2d 493, 573 N.E.2d 581[1991] ).Nor is there any basis to disturb County Court's conclusion that the police responded appropriately to the rapidly developing circumstances by taking the safety precaution of detaining defendant based on the report that an individual with a gun had entered the residence from which defendant then emerged ( seePeople v. De Bour,40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562[1976];People v. Stroman,107 A.D.3d at 1024, 967 N.Y.S.2d 202;People v. Mabeus,68 A.D.3d 1557, 1560–1561, 893 N.Y.S.2d 644[2009],lv. denied14 N.Y.3d 842, 901 N.Y.S.2d 148, 927 N.E.2d 569[2010] ).Further, the subsequent identification of defendant and discovery of the weapon provided sufficient probable cause for his arrest ( seePeople v. Stroman,107 A.D.3d at 1024, 967 N.Y.S.2d 202;People v. Bennett,189 A.D.2d 924, 925, 592 N.Y.S.2d 484[1993] ).

Although defendant claims that the People were improperly allowed to elicit testimony from a witness regarding a second weapon found in a hallway closet, the record reveals that defendant opened the door to this questioning by first introducing evidence regarding that...