People v. Hernandez

• Decision Date: 27 February 2020
• Docket Number: 109348
• Citation: 180 A.D.3d 1234,116 N.Y.S.3d 799
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph A. HERNANDEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 1234

116 N.Y.S.3d 799

The PEOPLE of the State of New York, Respondent,

v.Joseph A. HERNANDEZ, Appellant.

109348

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

Calendar Date: January 13, 2020

Decided and Entered: February 27, 2020

George P. Ferro, Albany, for appellant, and appellant pro se.

Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Devine, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered April 5, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree.

Defendant was charged by indictment with criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the seventh degree. The charges arose after police officers stopped defendant's vehicle for a traffic stop and the search of the vehicle revealed, among other things, a quantity of heroin and a blackjack. Following a jury trial, defendant was convicted as charged and was sentenced to a prison term of 2½ to 5 years for the criminal possession of a weapon conviction and six months in jail for the criminal possession of a controlled substance conviction. Defendant appeals.

Defendant asserts that, as to his criminal possession of a weapon conviction, the verdict was not supported by legally sufficient evidence and was against the weight of the evidence because the People failed to prove that he knowingly possessed the blackjack. "When considering a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the People and evaluate 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. Sostre, 172 A.D.3d 1623, 1625, 100 N.Y.S.3d 768 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 429 [2019] ; see People v. Small, 174 A.D.3d 1130, 1131, 105 N.Y.S.3d 211 [2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 630, 134 N.E.3d 629 [2019] ). In contrast, "[w]hen undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and[, if not,] then 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. Creech, 165 A.D.3d 1491, 1492, 87 N.Y.S.3d 384 [2018] [internal quotation marks and citations omitted]; see People v. Gill, 168 A.D.3d 1140, 1140, 90 N.Y.S.3d 392 [2019] ).

To convict defendant of criminal possession of a weapon in the third degree, the People had to show that defendant possessed a blackjack and has been previously convicted of any crime (see Penal Law § 265.02[1] ; see also Penal Law § 265.01[1] ). Although several of the per se weapons listed in Penal Law § 265.01 are defined in Penal Law § 265.00, no statutory definition is provided for a blackjack. In this circumstance, courts are instructed to "give the term its usual and commonly understood meaning" ( People v. Aragon, 28 N.Y.3d 125, 128, 42 N.Y.S.3d 646, 65 N.E.3d 675 [2016] [internal quotation marks and citation omitted] ), and dictionary definitions may serve as useful guideposts (see People v. Ocasio, 28 N.Y.3d 178, 181, 43 N.Y.S.3d 228, 65 N.E.3d 1263 [2016] ). To that end, a blackjack has been defined as "[a] short bludgeon consisting of a heavy head, as of metal, on an elastic shaft or with a flexible handle; a bludgeon-like weapon consisting of a lead slug attached to a leather thong; a small leather-covered club or billy weighted at the head and having an elastic shaft" (Black's Law Dictionary 154 [5th ed 1979] ). Similarly, a blackjack has been defined as "a hand weapon typically consisting of a piece of leather-enclosed metal with a strap or springy shaft for a handle" (Merriam–Webster Online Dictionary, blackjack [https://www.merriam-webster.com/dictionary/blackjack] ) or "a short, thick metal stick covered in rubber or leather, used to hit people" (Cambridge Online Dictionary, blackjack [https://www.dictionary.cambridge.org/dictionary/english/blackjack] ).

The evidence at trial revealed that police officers stopped defendant's vehicle for driving through a red light. Upon approaching the vehicle, police officers detected the smell of marihuana emanating from the vehicle and observed a marihuana cigarette in the vehicle. The police officers also observed that defendant had a large knife on him; defendant explained that he was bringing the knife with him to his ex-fiancée's house because she and her new boyfriend were having problems and his son was there. Defendant was then told to exit the vehicle, was searched and subsequently admitted to possessing marihuana, a bag of heroin and hypodermic needles in the vehicle. One of the police officers testified that, during the search of the vehicle, he discovered a suspicious object in defendant's backpack. Another police officer immediately identified the discovered object as a blackjack and described the item as having "a lead core, surrounded by leather, which is flexible and used as a weapon, a blunt object." The object was received into evidence. Defendant testified that he was aware that the blackjack was in the vehicle, but did not know that it was illegal or a weapon. He stated that he worked in the meat industry, had a freezer in his vehicle and used the blackjack to occasionally break the ice that accumulated in that freezer.

Viewed in a light most favorable to the People, we find that the evidence was legally sufficient to support the conviction of criminal possession of a weapon in the third degree. Defendant admitted that he knowingly possessed the blackjack, and the record shows that he was also aware of its bludgeoning nature as he stated that he used it to break other objects (see Penal Law §§ 265.01[1] ; 265.02[1]; People v. Parrilla, 27 N.Y.3d 400, 405, 33 N.Y.S.3d 842, 53 N.E.3d 719 [2016] ). Although a different verdict would not have been unreasonable, the verdict is in accord with the weight of the evidence (see People v. Andrade, 172 A.D.3d 1547, 1551, 100 N.Y.S.3d 408 [2019], lvs denied 34 N.Y.3d 928, 937, 109 N.Y.S.3d 713, 133 N.E.3d 415 [2019] ; People v. McCoy, 169 A.D.3d 1260, 1264, 95 N.Y.S.3d 441 [2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019] ).

Next, defendant contends that County Court gave improper jury instructions regarding the criminal possession of a weapon charge. As to the knowledge element of the crime, the court stated that this "element relates to ... defendant's knowledge of what he was possessing, that is, the nature of the object. There is no legal requirement that the People must prove beyond a...