People v. Lawrence

• Decision Date: 01 July 2016
• Citation: People v. Lawrence, 2016 NY Slip Op 5251, 141 A.D.3d 1079, 34 N.Y.S.3d 827 (N.Y. App. Div. 2016)
• Parties: The PEOPLE of the State of New York, Respondent, v. Eugene LAWRENCE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

141 A.D.3d 1079

34 N.Y.S.3d 827

2016 N.Y. Slip Op. 05251

The PEOPLE of the State of New York, Respondent,

v.Eugene LAWRENCE, Defendant–Appellant.

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

July 1, 2016.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of Counsel), for Defendant–Appellant.

Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.

MEMORANDUM:

On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3 ] ), defendant contends that Supreme Court erred in refusing to suppress a gun discovered by a police officer during a search of the residence he shared with his wife. Defendant sought suppression of the gun on the ground that he did not voluntarily consent to the search. Contrary to defendant's contention, we conclude that “the court did not err in determining, based upon the totality of the circumstances, that [defendant] voluntarily consented to the search of his residence” (People v. May, 100 A.D.3d 1411, 1412, 953 N.Y.S.2d 767, lv. denied 20 N.Y.3d 1063, 962 N.Y.S.2d 614, 985 N.E.2d 924 ). Here, the testimony of the police officer at the suppression hearing established that defendant was not in custody when he consented to the search, that the officer did not employ threats or other coercive techniques, and that defendant was calm and compliant throughout the interaction (see People v. Caldwell, 221 A.D.2d 972, 972–973, 634 N.Y.S.2d 331, lv. denied 87 N.Y.2d 920, 641 N.Y.S.2d 602, 664 N.E.2d 513 ). “The testimony of defendant[ ] ... at the suppression hearing that [he] did not voluntarily consent to the search raised an issue of credibility that the court was entitled to resolve against defendant” (People v. Mills, 137 A.D.3d 1690, 1691, 28 N.Y.S.3d 524 ; see People v. Harris, 132 A.D.3d 1281, 1283, 17 N.Y.S.3d 225, lv. denied 26 N.Y.3d 1109, 26 N.Y.S.3d 768, 47 N.E.3d 98 ). In light of our determination that defendant voluntarily consented to the search, we reject his further contention that his statements to the police must be suppressed as fruit of the poisonous tree (see People v. Nichols, 113 A.D.3d 1122, 1123, 978 N.Y.S.2d 569, lv. denied 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 ).

Defendant failed to preserve for our review his contention that he was denied a fair trial based on the allegedly improper inquiry by the prosecutor during jury selection regarding the prospective jurors' perception of a victim recanting a prior allegation made against a loved one (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). To the extent that any of the prosecutor's other remarks “could have been understood by prospective jurors as instructions on the law, any resulting prejudice was eliminated by the prosecutor's statement[s] that the trial court would instruct them later, and by the trial court's instructions to the jury” (People v. Alvarez, 304 A.D.2d 313, 313, 757 N.Y.S.2d 287, lv. denied 100 N.Y.2d 578, 764 N.Y.S.2d 388, 796 N.E.2d 480 ; see People v. Din, 62 A.D.3d 1023, 1024, 879 N.Y.S.2d 577, lv. denied 13 N.Y.3d 795, 887 N.Y.S.2d 545, 916 N.E.2d 440 ).

Defendant further contends that reversal of the judgment is required because the court erred in permitting the People to present evidence of a prior bad act, i.e., a witness's testimony that she had seen defendant in possession of the subject gun two years prior to the instant crime. We reject that contention. To the extent that defendant contends that the People's motion in limine concerning the witness's testimony was untimely because it was brought just before jury selection on the first day of trial, we conclude that his contention lacks merit. “[A] defendant is not entitled as a matter of law to pretrial notice of the People's intention to offer evidence pursuant to People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901) or to a pretrial hearing on the admissibility of such evidence” (People v. Small, 12 N.Y.3d 732, 733, 876 N.Y.S.2d 675, 904 N.E.2d 811 ; see generally People v. Ventimiglia, 52 N.Y.2d 350, 362, 438 N.Y.S.2d 261, 420 N.E.2d 59 ; People v. Holmes, 104 A.D.3d 1288, 1289–1290, 960 N.Y.S.2d 831, lv. denied 22 N.Y.3d 1041, 981 N.Y.S.2d 375, 4 N.E.3d 387 ). Nonetheless, the Court of Appeals “outlined in ... Ventimiglia a procedure to be followed in order to avoid unfairness to the defendant,” whereby “a prosecutor seeking to introduce Molineux evidence ‘should ask for a ruling out of the presence of the jury’ ..., and ... any hearing with respect to the admissibility of such evidence should occur either before trial or, at the latest, ‘just before the witness testifies' ” (Small, 12 N.Y.3d at 733, 876 N.Y.S.2d 675, 904 N.E.2d 811 ). The Court of Appeals emphasized that “there is no requirement that such inquiry or ruling occur before trial commences” (id. ). Here, when the court initially reserved decision on the People's motion with respect to the witness's testimony regarding defendant's past possession of the gun, it ruled, in effect, that the People would not be allowed to introduce such evidence of a prior bad act or uncharged crime as part of their case-in-chief unless defendant opened the door to such testimony by denying knowledge and/or possession of the gun (see generally People v. Ortiz, 259 A.D.2d 979, 980, 688 N.Y.S.2d 358, lv. denied 93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944 ). Although the prosecutor improperly referenced the witness's proposed testimony during her opening statement, defense counsel did not object and, thereafter, opened the door to the witness's testimony by arguing during his opening statement that defendant's wife owned the gun and knew its exact location in the residence, and that defendant was stunned by the discovery of the gun and had no knowledge of it (see People v. Kidd, 112 A.D.3d 994, 995–996, 976 N.Y.S.2d 309, lv. denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 ; People v. Cimino, 49 A.D.3d 1155, 1156, 856 N.Y.S.2d 368, lv. denied 10 N.Y.3d 861, 860 N.Y.S.2d 487, 890 N.E.2d 250 ; see generally People v. Rojas, 97 N.Y.2d 32, 34–39, 735 N.Y.S.2d 470, 760 N.E.2d 1265 ).

With respect to the admission of the witness's testimony, it is well established that “[e]vidence of ... prior uncharged crime [s] [or prior bad acts] may not be admitted solely to demonstrate a defendant's bad character or criminal propensity, but may be admissible if linked to a specific material issue or fact relating to the crime[s] charged, and if its probative value outweighs its prejudicial [effect]” (People v. Blair, 90 N.Y.2d 1003, 1004–1005, 665 N.Y.S.2d 629, 688 N.E.2d 503 ; see Kidd, 112 A.D.3d at 995, 976 N.Y.S.2d 309 ). Here, contrary to defendant's contention, the testimony that he had previously possessed the gun and had shown it to the witness in the residence after retrieving it from a safe “was relevant and probative of a material element of a crime charged, namely, defendant's knowing possession of the gun” (Kidd, 112 A.D.3d at 995, 976 N.Y.S.2d 309 ; see People v. Delarosa, 84 A.D.3d 832, 834, 922 N.Y.S.2d 188, lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95 ). “Although the court arguably could have better ‘recited its discretionary balancing of the probity of such evidence against its potential for prejudice’ ..., we conclude that, viewing the record in its entirety, the court conducted the requisite balancing test” (Holmes, 104 A.D.3d at 1290, 960 N.Y.S.2d 831 ). Contrary to defendant's contention, the court properly concluded that the probative value of the witness's testimony outweighed its prejudicial effect (see Kidd, 112 A.D.3d at 995, 976 N.Y.S.2d 309 ). In any event, the court minimized any prejudicial effect by instructing the jury immediately after the witness's testimony and during the jury charge that the testimony was to be considered only with respect to the allegation that defendant knowingly possessed the gun and was not to be considered as evidence of a propensity to commit the crime charged (see People v. Hernandez, 103 A.D.3d 433, 433–434, 959 N.Y.S.2d 197, lv. denied 22 N.Y.3d 1041, 981 N.Y.S.2d 375, 4 N.E.3d 387 ; Delarosa, 84 A.D.3d at 834, 922 N.Y.S.2d 188 ; see generally Small, 12 N.Y.3d at 733, 876 N.Y.S.2d 675, 904 N.E.2d 811 ).

We reject defendant's contention that the conviction is not supported by legally sufficient evidence. “ ‘To meet their burden of proving defendant's constructive possession of the [gun], the People had to establish that defendant exercised dominion or control over [the gun] by a sufficient level of control over the area in which [it was] found’ ” (People v. Diallo, 137 A.D.3d 1681, 1682, 27 N.Y.S.3d 778 ; see People v. Manini, 79 N.Y.2d 561, 573–574, 584 N.Y.S.2d 282, 594 N.E.2d 563 ). Here, the People presented evidence that the police officer discovered the stolen, loaded gun in the slightly opened safe located inside a bedroom in defendant's residence, and that the safe also contained ammunition, a holster, and mail addressed to defendant (see People v. Diaz, 24 N.Y.3d 1187, 1189–1190, 3 N.Y.S.3d 745, 27 N.E.3d 459 ). The People presented further testimony that defendant used and had authority over the safe in which the gun was located (see People v. Ortiz, 61 A.D.3d 779, 780, 877 N.Y.S.2d 175, lv. denied 13 N.Y.3d 748, 886 N.Y.S.2d 102, 914 N.E.2d 1020 ). Viewing the evidence in the light most favorable to the People, we conclude that defendant exercised dominion and control over the gun by a sufficient level of control over the area in which it was discovered, and thus the evidence is legally sufficient to establish beyond a reasonable doubt that defendant constructively possessed the gun (see id. ). In addition, “there was sufficient evidence that defendan...