People v. Colter

• Decision Date: 23 June 2022
• Docket Number: 111988
• Parties: The PEOPLE of the State of New York, Respondent, v. Patrick COLTER, Appellant.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 1371

170 N.Y.S.3d 665

The PEOPLE of the State of New York, Respondent,

v.Patrick COLTER, Appellant.

111988

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

Calendar Date: April 20, 2022

Decided and Entered: June 23, 2022

Adam G. Parisi, Schenectady, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Zachary S. Persichini of counsel), for respondent.

Before: Aarons, J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeals (1) from a judgment of the County Court of Chemung County (Rich Jr., J.), rendered September 13, 2019, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree, and (2) from a judgment of said court, rendered November 22, 2019, which resentenced defendant.

While on patrol on the evening of September 1, 2018, a deputy sheriff observed a vehicle making a right-hand turn at a high rate of speed. As a result, the deputy began to follow the vehicle. Shortly thereafter, the deputy received information that a vehicle – matching the description of the vehicle that he was following – had been involved in an incident at a local bar. The deputy conducted a traffic stop, and a subsequent search of the vehicle revealed, among other things, a handgun and a loaded magazine fitting the handgun. Defendant was thereafter charged in an indictment with criminal possession of a weapon in the second degree. Following a jury trial, defendant was convicted as charged. Defendant was sentenced, and, to correct an error, later resentenced to a prison term of 4½ years, to be followed by 2½ years of postrelease supervision.¹ Defendant appeals.

Several of defendant's arguments are unpreserved for our review due to his failure to properly raise them before County Court. By failing to object to the inclusion of the automobile presumption in the final charge, defendant has not preserved his contention (see People v. Jin Cheng Lin, 26 N.Y.3d 701, 729, 27 N.Y.S.3d 439, 47 N.E.3d 718 [2016] ; People v. Santiago, 185 A.D.3d 1151, 1152, 126 N.Y.S.3d 812 [2020], lv denied 35 N.Y.3d 1097, 131 N.Y.S.3d 290, 155 N.E.3d 783 [2020] ; People v. Stokes, 159 A.D.3d 1041, 1042–1043, 71 N.Y.S.3d 746 [2018].² Defendant also failed to preserve his argument that County Court erred in discharging juror No. 1, as he made no objection to the juror's discharge or to the sufficiency and reasonableness of the court's inquiry, nor did he request that such an inquiry be conducted (see People v. Hicks, 6 N.Y.3d 737, 739, 810 N.Y.S.2d 396, 843 N.E.2d 1136 [2005] ; People v. West, 166 A.D.3d 1080, 1083, 87 N.Y.S.3d 690 [2018], lv denied 32 N.Y.3d 1129, 93 N.Y.S.3d 268, 117 N.E.3d 827 [2018] ; People v. Coleman, 32 A.D.3d 1239, 1240, 821 N.Y.S.2d 316 [2006], lv denied 8 N.Y.3d 844, 830 N.Y.S.2d 703, 862 N.E.2d 795 [2007] ).

Defendant contends that the verdict is not supported by legally sufficient evidence and, further, is against the weight of the evidence. "When considering a challenge to the legal sufficiency of the evidence, [this Court] view[s] the evidence in the light most favorable to the People and evaluate[s] whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v. Hernandez, 180 A.D.3d 1234, 1235, 116 N.Y.S.3d 799 [2020] [internal quotation marks and citations omitted], lv denied 35 N.Y.3d 993, 125 N.Y.S.3d 630, 149 N.E.3d 391 [2020] ; see People v. Colon, 177 A.D.3d 1086, 1087, 113 N.Y.S.3d 389 [2019] ). "In contrast, when undertaking a weight of the evidence review, [this Court] must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and then, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Dickinson, 182 A.D.3d 783, 783–784, 122 N.Y.S.3d 797 [2020] [internal quotation marks, brackets and citations omitted], lv denied 35 N.Y.3d 1065, 129 N.Y.S.3d 408, 152 N.E.3d 1210 [2020] ; see People v. Walters, 189 A.D.3d 1769, 1770, 136 N.Y.S.3d 557 [2020], lvs denied 36 N.Y.3d 1094, 1101, 144 N.Y.S.3d 118, 128, 167 N.E.3d 1253, 1263 [2021]).

As relevant here, "[a] person is guilty of criminal possession of a weapon in the second degree when ... such person possesses any loaded firearm. Such possession shall not ... constitute a violation of this subdivision if such possession takes place in such person's home or place of business" ( Penal Law § 265.03[3] ). A " ‘[l]oaded firearm’ means any firearm loaded with ammunition or any firearm 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] ). "Constructive possession can be demonstrated where there is evidence – either direct or circumstantial – that [the] defendant exercised dominion and control over the weapon or the area in which it was found" ( People v. Oliver, 135 A.D.3d 1188, 1190, 23 N.Y.S.3d 696 [2016] [internal quotation marks and citations omitted], lv denied 27 N.Y.3d 1003, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ; see People v. Cherry, 149 A.D.3d 1346, 1347, 52 N.Y.S.3d 567 [2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ). "[S]ubject to certain exceptions not applicable here, the presence in an automobile of any firearm is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon is found" ( People v. Rawlinson, 170 A.D.3d 1425, 1426–1427, 97 N.Y.S.3d 319 [2019] [internal quotation marks, brackets, ellipses and citation omitted], lv denied 33 N.Y.3d 1107, 106 N.Y.S.3d 687, 130 N.E.3d 1297 [2019] ; see Penal Law § 265.15[3] ; People v. Tabb, 12 A.D.3d 951, 952, 785 N.Y.S.2d 193 [2004], lv denied 4 N.Y.3d 768, 792 N.Y.S.2d 12, 825 N.E.2d 144 [2005] ).

The People presented testimonial evidence from a deputy sheriff, several police officers, and an investigator/firearms instructor. The deputy sheriff averred that he observed a vehicle, with three silhouettes inside the vehicle, take a right-hand turn at a high rate of speed. He began to follow the vehicle into a parking lot, where the vehicle parked. Shortly thereafter, the deputy sheriff observed the driver and the passengers outside the vehicle. Simultaneously, the deputy received information over the radio and noticed that the vehicle and two of its subjects – a very tall male and a short male – matched the description of a vehicle and subjects involved in an earlier incident at a bar. Based on this information, the deputy sheriff directed the subjects to return to the vehicle and observed defendant veer off, circle an adjacent tan-colored sedan and make a slight throwing motion, after which he heard a metal object hit the ground. After other police officers arrived and handcuffed the subjects, the deputy sheriff retrieved an empty magazine from under the tan sedan. A police officer testified that he searched the vehicle and recovered, among other items, a loaded Sig Sauer 9–millimeter magazine, a Sig Sauer holster, a Sig Sauer handgun under the passenger front seat and a black-and-red work glove from the front passenger seat. The police officer also noted that the front seat was set very far back. A second police officer made contact with one of the subjects – who was 6 feet 6 inches tall – and found a similar red-and-black work glove hanging out of the right-hand pocket of his hoodie. Lastly, the investigator averred that the handgun was operable because he test-fired it, utilizing the ammunition from the magazine found in the vehicle. Defendant did not testify.

Defendant contends that the verdict is not supported by legally sufficient evidence because the automobile presumption of possession does not apply. To that end, defendant reasons that no one witnessed him inside the vehicle or exit the vehicle, he was outside the vehicle when the handgun was found and the other subjects allegedly had an opportunity to place the handgun in the vehicle while he was outside of it; therefore, the automobile presumption is inapplicable. It is undisputed that the deputy sheriff observed three silhouettes inside the vehicle and, shortly after the vehicle parked, the deputy sheriff observed defendant and two other subjects walking away from the vehicle – although the deputy did not observe defendant and the subjects exit the vehicle. The deputy sheriff further observed defendant throw an empty magazine – which fit the handgun found in the vehicle – under a nearby vehicle. The police recovered a handgun, a loaded magazine, and a glove that matched a glove that was in physical possession of one of the subjects, from the vehicle immediately after defendant and the other suspects began walking away from the vehicle. This evidence, viewed in the light most favorable to the People, provided a basis for application of use of the automobile presumption. Further, the evidence fails to rebut the automobile presumption as no other individuals were observed at or around the vehicle. The vehicle, defendant and the two other subjects were continually under surveillance from the time that they began walking away from the vehicle until the handgun and magazine were found inside it, and the subjects did not re-enter the vehicle. The foregoing proof provided a basis for application of the presumption of possession, and the evidence presented is legally sufficient to support defendant's conviction (see People v. Sostre, 172 A.D.3d 1623, 1626, 100 N.Y.S.3d 768 [2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 429 [2019] ; People v. Ware, 28 A.D.3d 1124, 1125, 813 N.Y.S.2d...