People v. LaDuke

• Citation: 34 N.Y.S.3d 688,2016 N.Y. Slip Op. 04978,140 A.D.3d 1467
• Parties: The PEOPLE of the State of New York, Respondent, v. Evan R. LaDUKE, Appellant.
• Decision Date: 23 June 2016
• Court: New York Supreme Court Appellate Division

140 A.D.3d 1467
34 N.Y.S.3d 688
2016 N.Y. Slip Op. 04978

The PEOPLE of the State of New York, Respondent,
v.
Evan R. LaDUKE, Appellant.

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

June 23, 2016.

34 N.Y.S.3d 689

Richard V. Manning, Parishville, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchely of counsel), for respondent.

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

LYNCH, J.

140 A.D.3d 1467

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered January 21, 2014, 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 fourth degree.

Jacob LaDuke, defendant's brother, was arrested for gun-related crimes in the early morning hours of March 14, 2013. Later that morning, police staked out the apartment where defendant and LaDuke resided. After defendant carried a black duffel bag from the apartment and placed it in his vehicle, he was apprehended. As relevant to defendant's charges, a search revealed that the duffel bag contained a loaded Glock 17 pistol and his vehicle contained a set of metal knuckles. During his ensuing police interview, defendant maintained that the pistol belonged to LaDuke and that, upon learning that LaDuke had been arrested, he attempted to bring the pistol to the police

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station and surrender it. Following a jury trial, defendant was convicted of criminal possession of a weapon in the second degree and criminal possession of a weapon in the fourth degree. Defendant appeals.

We affirm. Initially, we disagree with defendant that his conviction for criminal possession of a weapon in the second degree was against the weight of the evidence. As relevant to the challenged conviction, 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] ; see Penal Law § 265.00[3][a] ; People v. Oliver, 135 A.D.3d 1188, 1190, 23 N.Y.S.3d 696 [2016], lv. denied 27 N.Y.3d 1003, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ). “In some circumstances, however, despite possessing a proscribed weapon, a person may not be guilty due to ‘the innocent nature of the possession’ ”(People v. Curry, 85 A.D.3d 1209, 1211, 924 N.Y.S.2d 217 [2011], lv. denied

34 N.Y.S.3d 690

17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011], quoting People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ), and the affirmative defense of “[t]emporary and lawful possession may be established where there is ‘a legal excuse for having the weapon’ ” (People v. Curry, 85 A.D.3d at 1211, 924 N.Y.S.2d 217, quoting People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372 [1980] ; see People v. Alls, 117 A.D.3d 1190, 1191–1192, 984 N.Y.S.2d 677 [2014] ). Defendant does not take issue with the proof presented to show that the pistol was loaded and operable which, in any case, is amply supported by the record. Defendant rather contends that there is a lack of credible evidence to establish that his possession of the pistol was not temporary and innocent.

A different verdict would not have been unreasonable given defendant's trial testimony and, thus, we must “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v. Novick, 126 A.D.3d 1134, 1134, 5 N.Y.S.3d 574 [2015] [internal quotation marks and citations omitted], lv. denied 25 N.Y.3d 1075, 12 N.Y.S.3d 626, 34 N.E.3d 377 [2015] ; accord People v. Fournier, 137 A.D.3d 1318, 1319, 26 N.Y.S.3d 796 [2016] ). Dean Shedd testified that, in early March 2013, he sold a Glock 17 pistol to defendant in Vermont. Shedd testified that defendant identified himself as Sam Connors during their interactions and an envelope addressed to Sam Connors was found in defendant's vehicle. Also on March 3, 2013, defendant's vehicle made a round trip to Vermont and phone records established that Shedd corresponded with defendant's phone via text messages. With respect to the event precipitating LaDuke's arrest, Nicholas Mackiewicz testified that, on March 14, 2013, LaDuke and defendant threatened him while brandishing weapons. LaDuke was pulled over on Oak Street,

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near Mackiewicz's residence, and arrested. Although defendant was not arrested until later that day, police stopped defendant's vehicle on the same street around the time of LaDuke's arrest. At trial, LaDuke corroborated parts of Mackiewicz's account and testified that defendant owned the pistol. Although LaDuke's mother testified to his untruthfulness and both LaDuke and Mackiewicz admitted that they were under the influence of drugs during the events to which they testified, granting deference to the jury's credibility determinations, the jury's verdict convicting defendant of criminal possession of a weapon in the second degree was not against the weight of the evidence (see People v. Alls, 117 A.D.3d at 1192, 984 N.Y.S.2d 677 ; People v. Curry, 85 A.D.3d at 1211, 924 N.Y.S.2d 217 ; People v. Vargas, 60 A.D.3d 1236, 1238–1239, 875 N.Y.S.2d 625 [2009], lv. denied 13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022 [2009] ; People v. Myers, 265 A.D.2d 598, 600, 697 N.Y.S.2d 178 [1999] ).

We are unpersuaded by defendant's further contention that he was deprived of a fair trial based on County Court's alleged errors. Initially we find unpreserved defendant's assertion that the court violated the general rule governing the admissibility of scientific evidence formulated in Frye v. United States , 293 F. 1013 (1923) by allowing evidence obtained from a license plate reader without a showing of general acceptance in the scientific community, inasmuch as he failed to object to the evidence on this ground (see CPL 470.05[2] ; People v. Gallup, 302 A.D.2d 681, 684, 755 N.Y.S.2d 498 [2003], lv. denied 100 N.Y.2d 594, 766 N.Y.S.2d 169, 798 N.E.2d 353 [2003] ). In any event, as the investigator made the actual matches by analyzing a photograph of defendant's license plate, there was no Frye violation (see People v.

34 N.Y.S.3d 691

Burnell, 89 A.D.3d 1118, 1121–1122, 931 N.Y.S.2d 776 [2011], lv. denied 18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 [2012] ).

Nor did County Court err in handling two jury notes. CPL 310.30 “ ‘imposes two separate duties on the court following a substantive juror inquiry: the duty to notify counsel and the duty to respond’ ” (People v. Alcide, 21 N.Y.3d 687, 691–692, 976 N.Y.S.2d 432, 998 N.E.2d 1056 [2013], quoting People v. O'Rama, 78 N.Y.2d 270, 276, 574 N.Y.S.2d 159, 579 N.E.2d 189 [1991] ). However, where, as here, “defense counsel had notice of the contents of the note and the court's [intended] response, and failed to object at that time,” there is no mode of proceedings error and the claim is unpreserved for our review (People v. Ramirez, 15 N.Y.3d 824, 826, 909 N.Y.S.2d 1, 935 N.E.2d 791 [2010] ; see People v. Alcide, 21 N.Y.3d at 694, 976 N.Y.S.2d 432, 998 N.E.2d 1056 ). That said, in the first note, the jury listed five specific requests for the readback of testimony and the record confirms that the court reporter proceeded with the readback at the court's direction and without objection (see CPL 310.30 ; People v. Kahley, 105 A.D.3d 1322, 1323–1325, 963 N.Y.S.2d 487 [2013] ). As to the second note, the court properly reread the instructions on criminal

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possession of a weapon in the second degree, including the instruction on temporary lawful possession, in response to the jury's request for clarification—again without objection. Although the record does not expressly indicate whether defendant was present when the court notified counsel and responded to the jury's requests, the absence of a notation that defendant was present is insufficient to establish his absence (see People v. Pittman, 109 A.D.3d 1080, 1082, 971 N.Y.S.2d 600 [2013], lv. denied 22 N.Y.3d 1043, 981 N.Y.S.2d 376, 4 N.E.3d 388 [2013] ). Finally, we find no mode of proceedings error when the court did not admonish the jury with the exact language of CPL 270.40 before a recess in deliberations, because the court's admonishments, throughout the trial, adequately conveyed to the jury its function (see People v. Williams, 46 A.D.3d 585, 585–586, 846 N.Y.S.2d 620 [2007], lv. denied 10 N.Y.3d 772, 854 N.Y.S.2d 334, 883 N.E.2d 1269 [2008] ).

We also find that defendant received the effective assistance of counsel. During jury...