People v. Gray

• Decision Date: 29 June 2017
• Citation: 57 N.Y.S.3d 561,151 A.D.3d 1470
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Devin GRAY, Appellant.

151 A.D.3d 1470

57 N.Y.S.3d 561

The PEOPLE of the State of New York, Respondent,

v.Devin GRAY, Appellant.

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

June 29, 2017.

David E. Woodin, Catskill, for appellant, and appellant pro se.

D. Holley Carnright, District Attorney, Kingston (Jason J. Kovacs of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, EGAN JR., DEVINE and MULVEY, JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered February 27, 2015, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and reckless endangerment in the second degree.

In June 2014, defendant was indicted and charged with criminal possession of a weapon in the second degree (three counts) and reckless endangerment in the first degree.¹ The charges stemmed from an incident that occurred during the early morning hours of June 3, 2014 outside of an apartment complex located in the City of Kingston, Ulster County wherein defendant, who was armed with a loaded 9 millimeter rifle, and another individual, Eric Harris, who was armed with a loaded 12–gauge shotgun, met up and exchanged gunfire. Defendant, who was the only person injured during this exchange, was taken to a local hospital and treated for gunshot wounds to his abdominal region. While there, a police officer collected defendant's personal effects, including three rounds of ammunition.

Following a jury trial, defendant was convicted of one count of criminal possession of a weapon in the second degree and one count of reckless endangerment in the second degree (as a lesser included offense). County Court thereafter sentenced defendant to an aggregate prison term of 15 years followed by five years of postrelease supervision. Defendant now appeals.

Defendant initially contends that County Court erred in denying his motion to suppress certain physical evidence—namely, the rifle and ammunition seized from an apartment near the scene of the shooting (where his cousin and the mother of his cousin's child resided) and the three rounds of ammunition collected at the hospital. With respect to the rifle and ammunition located in the subject apartment, inasmuch as "defendant was no more than a casual visitor having ‘relatively tenuous ties' to the [apartment]" occupied by his cousin and the mother of his cousin's child ( People v. Pope, 113 A.D.3d 1121, 1122, 977 N.Y.S.2d 866 [2014], lv. denied 23 N.Y.3d 1041, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014], quoting People v.

Ortiz,

83 N.Y.2d 840, 842, 611 N.Y.S.2d 500, 633 N.E.2d 1104 [1994] ),² we agree with County Court that defendant lacked standing to challenge the seizure of those items (see People v. Shire, 77 A.D.3d 1358, 1359–1360, 908 N.Y.S.2d 305 [2010], lv. denied 15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] ; People v. Gonzalez, 45 A.D.3d 696, 696, 845 N.Y.S.2d 817 [2007], lv. denied 10 N.Y.3d 811, 857 N.Y.S.2d 44, 886 N.E.2d 809 [2008] ). In any event, defendant's argument on this point lacks merit because one of the occupants informed the police that there was a firearm in her apartment that did not belong to her, granted the police permission to enter the apartment "to check for it" and the rifle and ammunition were in plain view (see People v. Fayton, 276 A.D.2d 339, 339–340, 715 N.Y.S.2d 2 [2000], lv. denied 95 N.Y.2d 963, 722 N.Y.S.2d 480, 745 N.E.2d 400 [2000] ; People v. Figueroa, 267 A.D.2d 183, 183, 700 N.Y.S.2d 676 [1999], lv. denied 94 N.Y.2d 919, 708 N.Y.S.2d 358, 729 N.E.2d 1157 [2000] ; People v. Maye, 206 A.D.2d 755, 756–757, 615 N.Y.S.2d 94 [1994], lv. denied 84 N.Y.2d 1035, 623 N.Y.S.2d 191, 647 N.E.2d 463 [1995] ).³ As for the ammunition collected with defendant's clothing at the hospital, even assuming, without deciding, that County Court erred in denying defendant's motion to suppress, we find this error—though constitutional in dimension—to be harmless beyond a reasonable doubt, "as there is no reasonable possibility that the error might have contributed to defendant's conviction" ( People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ; see People v. Lewis, 23 N.Y.3d 179, 189, 989 N.Y.S.2d 661, 12 N.E.3d 1091 [2014] ).

Turning to the evidence adduced at trial, defendant's present challenge to the legal sufficiency of the evidence—namely, that the subject firearm was not a semiautomatic weapon—was not preserved for our review, as defendant did not raise this specific ground in the context of his motion for a trial order of dismissal. "Nevertheless, our weight of the evidence review necessarily involves an evaluation of whether all elements of the charged crimes were proven beyond a reasonable doubt" ( People v. Newell, 148 A.D.3d 1216, 1220, 48 N.Y.S.3d 800 [2017] [internal quotation marks and citations omitted], lv. denied 29 N.Y.3d 1035, ––– N.Y.S.3d ––––, –––N.E.3d –––– [May 25, 2017] ). Insofar as is relevant here, "[a] person is guilty of criminal possession of a weapon in the second degree when ... such person possesses any loaded firearm" outside of his or her home or place of business ( Penal Law § 265.03[3] ). A "loaded firearm" includes "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] ). A "firearm" includes, among other things, "an assault weapon" ( Penal Law § 265.00[3][e] ), which is defined—in relevant part—as "a semiautomatic rifle that has an ability to accept a detachable magazine and has ... a pistol grip that protrudes conspicuously beneath the action of the weapon" ( Penal Law § 265.00[22][a] [ii] ).⁴ "Semiautomatic," in turn, "means any repeating rifle, shotgun or pistol, regardless of barrel or overall length, which utilizes a portion of the energy of a firing cartridge or shell to extract the fired cartridge case or spent shell and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge or shell" ( Penal Law § 265.00 [21] ). Finally, "[a] person is guilty of reckless endangerment in the second degree when he [or she] recklessly engages in conduct which creates a substantial risk of serious physical injury to another person" ( Penal Law § 120.20 ).

Here, the testimony at trial revealed that defendant and Harris exchanged words in the hours leading up to the shooting and ultimately encountered one another near the entrance to the apartment complex, at which point—multiple witnesses testified—defendant was armed with a rifle and Harris was armed with a shotgun. The war of words continued, during the course of which defendant waved his rifle around—variously pointing the weapon in the direction of at least three individuals. When defendant's cousin approached Harris and attempted to de-escalate the situation, Harris purportedly said, "I don't give a f* * *. It's just a BB gun." In response, defendant reportedly said, "[Y]ou think this is a BB gun"?, and thereafter fired his weapon. Harris then returned fire, and defendant ran into his cousin's nearby apartment. Although the People's witnesses were not in universal agreement as to the number of shots fired (either in total or by defendant), there is no dispute that defendant fired at least one round from his rifle, and a spent rifle casing and two spent shotgun shells were recovered at the scene. Accordingly, there is no question that defendant was armed with and did in fact fire his rifle—at least once—on the night in question.

In addition to the foregoing, defendant readily concedes that the subject firearm was operable, was capable of accepting a detachable magazine and had an extended pistol grip (see Penal Law § 265.00[22][a][ii] )—facts that also were confirmed through the testimony of Michael Powers, a detective with the Kingston Police Department, Andrew Zell, the lead firearms instructor for the Kingston Police Department, and Michael D'Allaird, a firearms expert employed by the State Police. Defendant nonetheless contends, however, that the rifle in question did not meet the statutory definition of an assault weapon because it was not a "semiautomatic rifle" ( Penal Law § 265.00 [22 ][a] ). Specifically, defendant argues that the rifle was not a "repeating rifle" that "utilize[d] a portion of the energy of [the] firing cartridge ... to extract the fired cartridge case ... and chamber the next round, and which require[d] a separate pull of the trigger to fire each cartridge" ( Penal Law § 265.00[21] ).

Contrary to defendant's assertion, the term "repeating rifle," which appears in the portion of the statute defining the term "semiautomatic" (see Penal Law § 265.00[21] ), refers to the weapon's design and capabilities—not the specific manner in which it was operated at a particular point in time. Thus, the mere fact that defendant may have only fired one round from his rifle on the morning in question neither precludes nor negates a finding that the subject firearm was a "repeating rifle" within the meaning of Penal Law § 265.00(21). Stated another way, nothing on the face of the statute requires that a weapon be fired multiple times in order to qualify as a repeating rifle, shotgun or pistol. Similarly, although the testimony revealed that the rifle's magazine was broken and inoperable at the time of the shooting, again, the statute only requires that the weapon "has an ability to accept a detachable magazine" ( Penal Law § 265.00[22][a] )—not that such magazine be utilized each and every time that the weapon is fired. Finally, although defendant makes much of the fact that a spring was a component of the process by which new rounds were chambered in the weapon, the presence of the spring in the magazine does not take defendant's rifle outside of the definition of a semiautomatic rifle. In this regard, both Powers and D'Allaird testified that defendant's rifle was a "self feed[ing]" or ...