People v. Morris

• Decision Date: 23 June 2016
• Citation: 140 A.D.3d 1472,2016 N.Y. Slip Op. 04979,34 N.Y.S.3d 513
• Parties: The PEOPLE of the State of New York, Respondent, v. Willie F. MORRIS, Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1472

34 N.Y.S.3d 513

2016 N.Y. Slip Op. 04979

The PEOPLE of the State of New York, Respondent,

v.Willie F. MORRIS, Appellant.

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

June 23, 2016.

Mark Diamond, Albany, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE, CLARK and AARONS, JJ.

GARRY

, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered February 26, 2014, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree.

Following an incident in which he was alleged to have possessed a stolen handgun, defendant was charged with criminal possession of a weapon in the second degree and criminal possession of stolen property in the fourth degree. An initial trial resulted in defendant's acquittal as to the criminal possession of stolen property in the fourth degree charge, and a mistrial was declared as to the remaining count. At the conclusion of the second trial, a jury found defendant guilty of the sole remaining count of criminal possession of a weapon in the second degree. Defendant was then sentenced, as a second felony offender, to 13 years in prison with five years of postrelease supervision. Defendant appeals.

Initially, defendant's nonspecific motion for a trial order of dismissal was insufficient to preserve his argument that the conviction was not supported by legally sufficient evidence (see People v. Hawkins, 11 N.Y.3d 484, 492 [2008]

; People v. Parker, 127 A.D.3d 1425, 1426, 6 N.Y.S.3d 801 [2015] ; People v. Carter, 40 A.D.3d 1310, 1311, 838 N.Y.S.2d 192 [2007], lvs. denied 9 N.Y.3d 873, 879, 842 N.Y.S.2d 785, 874 N.E.2d 752 [2007] ). Nor did his subsequent motion to set aside the verdict pursuant to

CPL 330.30

preserve the issue for our review; such relief is limited to issues that have been preserved and require reversal as a matter of law (see

People v. Howard, 134 A.D.3d 1153, 1158, 21 N.Y.S.3d 423 [2015], lv. denied 27 N.Y.3d 965, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. Simmons, 111 A.D.3d 975, 977, 974 N.Y.S.2d 185 [2013], lv. denied 22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ). Nevertheless, defendant's claim that the verdict was against the weight of the evidence requires us to consider whether the proof at trial was adequate to establish each element of the charged offense (see People v. Butler, 126 A.D.3d 1122, 1122

n., 4 N.Y.S.3d 751 [2015], lv. denied 25 N.Y.3d 1199, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015] ). Where, as here, a different outcome would not have been unreasonable, we “view the evidence in a neutral light and weigh the probative force of the conflicting testimony and any rational inferences that may be drawn from the evidence” (People v. Gordon, 119 A.D.3d 1284, 1285, 990 N.Y.S.2d 728 [2014], lv. denied 24 N.Y.3d 1002, 997 N.Y.S.2d 120, 21 N.E.3d 572 [2014] ; see

People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Nelligan, 135 A.D.3d 1075, 1076, 22 N.Y.S.3d 697 [2016] ).

During defendant's trial, the People called, among other witnesses, the two police officers who initially encountered defendant, Michael Fargione and Milton Johnson. Fargione testified that he and Johnson were on patrol in an unmarked police vehicle at approximately 12:25 a.m. when they observed a crowd of people drinking and smoking in front of the Port Tavern on South Pearl Street in the City of Albany. Fargione parked the vehicle in the oncoming lane in front of the tavern with the intention of issuing citations for loitering and obstructing the sidewalk. Upon exiting the vehicle, Fargione detected the strong odor of marihuana. As the officers approached the crowd, he observed defendant grab at his waistband and take off running while pushing other people out of the way. Fargione pursued defendant on foot and ordered him to stop. Johnson followed. One other individual in the crowd also fled, but took a different route and was not pursued by the officers. Defendant slipped and fell twice as the officers were giving chase. Fargione observed that defendant was wearing one glove and, during defendant's second fall, also observed a black object in his left hand. After his second fall, defendant regained his footing and turned a corner onto Broad Street. As defendant approached a vacant, snow-covered lot on Broad Street, Fargione—who was steps behind defendant-saw defendant throw the black object into the vacant lot. Defendant continued to run a short distance before finally lying down in a snow bank, where Fargione placed him under arrest. Notably, Fargione testified that there was no one else running in front of defendant during the pursuit.

Johnson provided a similar account of the pursuit. He testified that, upon first approaching the crowd in front of the tavern, he observed defendant reach down and grab a black object from the right side of his waistband area before defendant then fled the scene, pushing people out of his path in the process. Johnson further testified that he was following Fargione at a distance of approximately 10 to 20 feet. He observed defendant fall twice before regaining his footing. Defendant eventually rounded a corner onto Broad Street, followed by Fargione, and both were briefly out of sight. Upon reaching Broad Street, Johnson observed that Fargione had placed defendant under arrest. Johnson testified consistently with Fargione that he did not observe anyone else running in front of defendant. Once defendant had been placed under arrest, other officers arrived at the scene.

One of these officers, Matthew Serpe, testified that he and Fargione conducted a visual search of the vacant lot and that he observed a “divot” in the snow, which he then pointed out to Fargione. According to Fargione, the indentation was located about 30 to 40 feet from where he had observed defendant throw the black object. Upon closer inspection of the divot, the officers discovered a black sock. Both officers testified that the sock did not show any effects from the weather; Serpe noted that it was “basically clean other than the snow on the bottom of it.” Serpe then discovered that the sock contained a loaded handgun which, he noted, was “body temperature.” The People also called several witnesses to testify regarding efforts to recover DNA evidence from the sock and handgun, as well as fingerprints from the handgun and shell casings. In sum, this testimony revealed that, although samples were obtained and tested from the sock and handgun, the DNA results were too complex to permit a conclusive identification. No fingerprints were recovered from the handgun or shell casings.

The defense offered a differing account of the events, which, in essence, suggested that another individual who had fled from the tavern might have discarded the handgun. Defendant's sister, Heavenly Morris, and his friend, Michael Wilson, each testified that they observed numerous individuals running away from the tavern prior to defendant's arrest. Wilson testified that, while running away from the tavern down Broad Street, he saw “a few people” running ahead of him. He also observed a black male wearing a red or burgundy jacket make a throwing motion, although he conceded that he did not see if anything was actually thrown. On cross-examination, he clarified that he knew that the black male in the red jacket was not defendant because he had seen defendant at the tavern earlier and “believe[d] he had on black or something like that.” He also acknowledged that, although he was aware of the charges against defendant, he had not come forward with the information until the day before his testimony. Defendant denied being aware that the individuals pursuing him were police officers and asserted that there were “[a] dozen” other individuals fleeing from the tavern ahead of him. He also denied having possessed a handgun or a glove that evening, and reiterated the testimony of Morris that he had been patted down for weapons earlier in the evening before entering another bar. On cross-examination, however, he conceded that the police property report listed a glove that was recovered from his person. He also acknowledged that, while awaiting trial, he had been incarcerated on the same cell block as Wilson, but asserted that he had merely asked Wilson to testify as to his observations and did not discuss any of the factual details of the case.

Upon our independent review, we find the verdict supported by the weight of the evidence. The People presented ample evidence to establish that “defendant possessed a loaded firearm in a place other than his home or business” (People v. Hawkins, 110 A.D.3d 1242, 1242, 973 N.Y.S.2d 437 [2013]

, lv. denied 22 N.Y.3d 1041, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] ; see Penal Law § 265.03[3] ). Although the testimony of the defense witnesses, if believed, provided an alternate account of the circumstances surrounding the discovery of the weapon, “[i]n reviewing the evidence, we accord great deference to the jury's credibility determinations given its opportunity to hear the testimony and observe the witnesses' demeanor” (People v. Lopez–Aguilar, 64 A.D.3d 1037, 1037, 883 N.Y.S.2d 376 [2009], lv. denied 13 N.Y.3d 940, 895 N.Y.S.2d 330, 922 N.E.2d 919 [2010] ; see

People v. Romero, 7 N.Y.3d 633, 644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ; People v. Rojas, 121 A.D.3d 1427, 1429, 995 N.Y.S.2d 392 [2014], lv. denied 24 N.Y.3d 1221, 4 N.Y.S.3d 609, 28 N.E.3d 45 [2015] ). Notably, the credibility of the defense witnesses was called into question by the People's ability to establish inconsistencies in their testimony and facts that would support a reasonable inference of bias. Thus, viewing the evidence in a neutral light, we find that the jury's verdict was not against the weight of the evidence (see People v. Oliver, 135 A.D.3d 1188, 1191, ...