People v. Garcia

• Decision Date: 09 December 2010
• Citation: 911 N.Y.S.2d 723,79 A.D.3d 1248
• Parties: The PEOPLE of the State of New York, Respondent, v. Johnnie M. GARCIA III, Appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 723

79 A.D.3d 1248

The PEOPLE of the State of New York, Respondent,

v.Johnnie M. GARCIA III, Appellant.

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

Dec. 9, 2010.

Timothy S. Brennan, Schenectady, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.

Before: ROSE, J.P., LAHTINEN, STEIN, McCARTHY and GARRY, JJ.

STEIN, J.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered July 9, 2007, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts).

While on duty in a marked police car, Richard Comstock observed a light-skinned male, wearing a white sweatshirt withdark stripes on the sleeve and a light colored hat on his head, lean out of the front passenger-side window of a minivan and fire five or six shots from a semiautomatic handgun at a Jeep, which was in front of the minivan. Comstock reported the incident and pursued the minivan. After a short distance, the minivan pulled over and a male jumped out of the front passenger-side door and fled by foot in a northwest direction across a parking lot. The minivan sped off and Comstock chose to pursue the suspect who jumped out of the van. Comstock momentarily lost sight of the suspect, but then observed him running across a parking lot in an easterly direction toward a building. The police surrounded that building and found defendant hiding in the bushes alongside the building. Comstock immediately identified defendant as the suspect who had fired the shots from and exited the minivan. Defendant was thereafter arrested and indicted on one count of criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree. After a jury trial, defendant was found guilty as charged and sentenced to an aggregate prison term of 15 years, with five years of postrelease supervision. He now appeals.

Defendant first contends that count 1 of the indictment, charging criminal possession of a weapon in the second degree, should be dismissed as jurisdictionally defective because it failed to allege facts constituting the cited crime. We disagree. Although count 1 of the indictment incorrectly cited Penal Law § 265.03(2) as the crime of which defendant was accused, it alleged facts constituting all the elements of Penal Law § 265.03(1)(b) and the People proceeded at all times throughout the case on the theory that defendant had committed acts in violation of Penal Law § 265.03(1)(b). In his pretrial omnibus motion, defendant did not specifically appriseCounty Court of the technical defect in the indictment; had he done so, the People would have been alerted to the error, so that they could move to amend the indictment ( see CPL 200.70[1]; People v. Miller, 23 A.D.3d 699, 701, 803 N.Y.S.2d 734 [2005], lv. denied 6 N.Y.3d 815, 812 N.Y.S.2d 455, 845 N.E.2d 1286 [2006] ). Under these circumstances, reversal of his conviction of this count is not warranted.

However, we find merit to defendant's argument that count 2 of the indictment, charging criminal possession of a weapon in the third degree in violation of Penal Law § 265.02(4), should have been dismissed. Inasmuch as that subdivision was repealed prior to the date of the indictment ( see L. 2006, ch. 742, § 1), count 2 was jurisdictionally defective, requiring its dismissal ( see People v. Bethea, 61 A.D.3d 1016, 1017, 874 N.Y.S.2d 920 [2009] ). As such, defendant's conviction of said count must be reversed.

With regard to defendant's pretrial motion to suppress the statements he gave to the police, Comstock testified at the Huntley hearing that, without asking defendant any questions, he gave him Miranda warnings and then advised him that an investigator would be in momentarily in order to question him. Comstock further testified that defendant was left alone for approximately 15 to 30 minutes before Investigator Richard Weed arrived. Weed testified at the Huntley hearing that he advised defendant before beginning his questioning that the Miranda rights conveyed to him by Comstock still applied. Defendant then made statements to Weed regarding the events of the evening. Despite the absence of a written waiver, defendant's conduct evinced a waiver of his right to remain silent ( see People v. Sirno, 76 N.Y.2d 967, 968, 563 N.Y.S.2d 730, 565 N.E.2d 479 [1990]; People v. Gill, 20 A.D.3d 434, 434, 798 N.Y.S.2d 507 [2005]; People v. Nunez, 176 A.D.2d 70, 72, 579 N.Y.S.2d 959 [1992], affd. 80 N.Y.2d 858, 587 N.Y.S.2d 899, 600 N.E.2d 626 [1992] ). Moreover, inasmuch as defendant remained in continuous custody, no evidence exists that he was subjected to coercive tactics and the delay between the administration of the Miranda warnings and the questioning was not excessive, County Court properly determined that defendant's statements were voluntary ( see People v. Carelli, 41 A.D.3d 1092, 1093, 838 N.Y.S.2d 708 [2007]; People v. Gause, 38 A.D.3d 999, 1000, 830 N.Y.S.2d 859 [2007], lvs. denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007] ).

Defendant's challenge to the legal sufficiency of the evidence supporting the convictions was not fully preserved, as defendant made only a general motion to dismiss at the close of the People's case and did not renew or supplement the motion upon the close of his case or the People's rebuttal ( see People v. Richardson, 55 A.D.3d 934, 935 n. 1, 865 N.Y.S.2d 138 [2008], lv. dismissed 11 N.Y.3d 857, 872 N.Y.S.2d 80, 900 N.E.2d 563 [2008] ). " 'However, we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence' " ( People v. Gonzalez, 64 A.D.3d 1038, 1040, 882 N.Y.S.2d 598 [2009], lv. denied 13 N.Y.3d 796, 887 N.Y.S.2d 545, 916 N.E.2d 440 [2009], quoting People v. Caston, 60 A.D.3d 1147, 1148-1149, 874 N.Y.S.2d 623 [2009] [citations omitted] ). Here, as properly charged by County Court, in order to convict defendant of the charge of criminal possession of a weapon in the second degree as set forth in count 1 of the indictment, the People were required to prove that defendant possessed a loaded firearm with the intent to use it unlawfully against anotherperson ( see Penal Law § 265.03[1][b] ). Conviction of the charge of criminal possession of a weapon in the third degree as set forth in count 3 of the indictment required proof that, on the date and at the locationdescribed therein, defendant knowingly possessed a firearm and that such firearm was operable ( see Penal Law § 265.02[1] ).¹

At trial, Comstock testified that, from a distance of approximately 20 to 25 paces, he observed a light-skinned male, wearing a white sweatshirt with markings on the sleeve and a light colored hat, lean out of the front passenger-side window of the minivan and discharge a semiautomatic weapon at another vehicle. He further testified...