People v. Moses

• Citation: 113 N.Y.S.3d 267,177 A.D.3d 619
• Decision Date: 06 November 2019
• Docket Number: Ind. No. 1815/13,2016-01114
• Parties: The PEOPLE, etc., Respondent, v. James MOSES, Appellant.
• Court: New York Supreme Court Appellate Division

177 A.D.3d 619

113 N.Y.S.3d 267

The PEOPLE, etc., Respondent,

v.James MOSES, Appellant.

2016-01114

Ind. No. 1815/13

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

November 6, 2019

Argued—June 14, 2019

Roberto D. DiDio, Kew Gardens, NY, for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Daniel Bresnahan and Hilda Mortensen of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Alan L. Honorof, J.), rendered January 8, 2016, convicting him of criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Anthony W. Paradiso, J.), of the suppression of physical evidence.

ORDERED that the judgment is affirmed.

On October 26, 2012, based on information that a certain individual provided to the police department, which then provided such information to the probation department, probation officers accompanied by police officers performed a warrantless search inside a bedroom of a house where the defendant resided with his girlfriend. Inside an unlocked safe, the officers found two firearms. The defendant, who was not in the house when the guns were found, was convicted upon a jury verdict of multiple counts of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, under a theory of constructive possession.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), and drawing all reasonable inferences in the People's favor (see People v. Gordon, 23 N.Y.3d 643, 649, 992 N.Y.S.2d 700, 16 N.E.3d 1178 ; People v. Delamota, 18 N.Y.3d 107, 113, 936 N.Y.S.2d 614, 960 N.E.2d 383 ; People v. Ford, 66 N.Y.2d 428, 437, 497 N.Y.S.2d 637, 488 N.E.2d 458 ), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. "To support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found" ( People v. Williams, 170 A.D.3d 1046, 1047, 96 N.Y.S.3d 273 ; see Penal Law § 10.00[8] ; People v. Muhammad, 16 N.Y.3d 184, 188, 920 N.Y.S.2d 760, 945 N.E.2d 1010 ; People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 ). "Constructive possession may be established by direct evidence or by circumstantial evidence with inferences drawn from the facts presented in the case" ( People v. Skyles, 266 A.D.2d 321, 322, 698 N.Y.S.2d 286 ; see People v. Williams, 170 A.D.3d at 1047, 96 N.Y.S.3d 273 ). "We apply the same standard in reviewing the legal sufficiency in circumstantial evidence cases as in direct evidence cases" ( People v. Williams, 170 A.D.3d at 1047, 96 N.Y.S.3d 273 ; see People v. Hines, 97 N.Y.2d 56, 62, 736 N.Y.S.2d 643, 762 N.E.2d 329 ).

Based upon the discovery by the police officers and probation officers of, inter alia, the defendant's driver license, the title to his vehicle, and his birth certificate inside the same bedroom safe in which the subject firearms were found, inside the home that the defendant identified as his residence, "the jury could reasonably infer that the defendant exercised dominion and control over the bedroom in which the [firearms] ... were found, and thus, that he constructively possessed those items" ( People v. Williams, 170 A.D.3d at 1047–1048, 96 N.Y.S.3d 273 ; see People v. Torres, 68 N.Y.2d 677, 678–679, 505 N.Y.S.2d 595, 496 N.E.2d 684 ; People v. Robertson, 48 N.Y.2d 993, 425 N.Y.S.2d 545, 401 N.E.2d 903 ; People v. Grasso, 163 A.D.3d 991, 993, 82 N.Y.S.3d 65 ; People v. Skyles, 266 A.D.2d at 322, 698 N.Y.S.2d 286 ; People v. Gomez, 191 A.D.2d 583, 595 N.Y.S.2d 83 ; People v. Pinchback, 187 A.D.2d 540, 541–542, 589 N.Y.S.2d 600, affd 82 N.Y.2d 857, 609 N.Y.S.2d 158, 631 N.E.2d 100 ).

Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). While jurors could have reasonably concluded that the defendant's girlfriend also had access to the firearms, "and might at some point have had possession of them, ‘[m]ere access by others ... does not preclude a finding of constructive possession’ " ( People v. Williams, 170 A.D.3d at 1048, quoting People v. Pinchback, 187 A.D.2d at 541–542, 589 N.Y.S.2d 600 ). "Moreover, ‘possession, even if joint, is still possession" ( People v. Williams, 170 A.D.3d at 1048, 96 N.Y.S.3d 273, quoting People v. Torres, 68 N.Y.2d at 679, 505 N.Y.S.2d 595, 496 N.E.2d 684 ; see People v. Tirado, 38 N.Y.2d 955, 956, 384 N.Y.S.2d 151, 348 N.E.2d 608 ).

The defendant's contention that the Supreme Court should have granted his counsel's request for an adjournment because the denial of the request deprived him of his right to counsel of his choice is unpreserved for appellate review (see People v. Tineo, 64 N.Y.2d 531, 535–536, 490 N.Y.S.2d 159, 479 N.E.2d 795 ; People v. Greene, 169 A.D.3d 715, 91 N.Y.S.3d 698 ; People v. Brown, 90 A.D.3d 545, 546, 934 N.Y.S.2d 414 ), and we decline to review the defendant's contention in the exercise of our interest of justice jurisdiction (see People v. Greene, 169 A.D.3d at 715, 91 N.Y.S.3d 698 ).

We agree with the Supreme Court's determination declining to suppress physical evidence. Probation officers learned from the police that there was credible information that the defendant was in possession of firearms that he kept at the home he shared with his girlfriend. The order and conditions of the defendant's probation provided, inter alia, that the defendant was not to "possess or own ... weapons, ammunition or simulated firearms, including but not limited to those defined in Section 265.00 of the New York State Penal Code." The search by probation officers of the defendant's bedroom, which he shared with his girlfriend, "was rationally and reasonably related to the [probation] officers' duty to detect and prevent [probation] violations for the protection of the public from the commission of further crimes and to prevent violations of [probation]" ( People v. Clark, 167 A.D.3d 1035, 1036, 88 N.Y.S.3d 894 ). Contrary to the defendant's contentions, the fact that the information regarding the presence of firearms in the defendant's home was provided to the probation department by the police department did not signify that the home visit was initiated by the police department, rather than the probation department, or render the search a police operation (see People v. Johnson, 63 N.Y.2d 888, 483 N.Y.S.2d 201, 472 N.E.2d 1029 ; People v. Purnell, 166 A.D.3d 814, 815, 88 N.Y.S.3d 86 ; People v. Adams, 126 A.D.3d 1405, 1405, 5 N.Y.S.3d 779 ; People v. Johnson, 54 A.D.3d 969, 864 N.Y.S.2d 132 ; People v. Montero, 44 A.D.3d 796, 797, 843 N.Y.S.2d 394 ). Moreover, the People met their burden of showing that consent to the warrantless search was freely and voluntarily given by the defendant's girlfriend, "who possessed the requisite degree of authority and control over the premises" ( People v. Clark, 167 A.D.3d at 1036, 88 N.Y.S.3d 894 ; see People v. Bunce, 141 A.D.3d 536, 537, 35 N.Y.S.3d 414 ; People v. Gonzalez, 222 A.D.2d 453, 453, 634 N.Y.S.2d 538 ).

Contrary to the defendant's contentions, the evidence regarding his probation status, and the relevant terms and conditions of his probation, were inextricably interwoven with the facts of the case and were properly admitted "to complete the narrative of the events leading up to the crime[s] charged" ( People v. Ramos, 287 A.D.2d 471, 472, 731 N.Y.S.2d 50 ; see People v. Boyd, 159 A.D.3d 1358, 1360, 73 N.Y.S.3d 301 ; People v. Crawford, 158 A.D.3d 1255, 1256, 71 N.Y.S.3d 268 ). Moreover, the Supreme Court minimized any prejudice to the defendant by precluding any evidence of the crime of which the defendant was previously convicted (see People v. Harris, 147 A.D.3d 1328, 1330, 47 N.Y.S.3d 528 ).

"A basic premise of our criminal justice system is that a defendant has the right to trial by an impartial jury" ( People v. Arnold, 96 N.Y.2d 358, 360, 729 N.Y.S.2d 51, 753 N.E.2d 846 ; see People v. Branch, 46 N.Y.2d 645, 652, 415 N.Y.S.2d 985, 389 N.E.2d 467 ; People v. Tullock, 148 A.D.3d 1061, 1062, 50 N.Y.S.3d 135 ). " ‘[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial’ " ( People v. Gross, 172 A.D.3d 741, 743, 99 N.Y.S.3d 367, quoting People v. Warrington, 28 N.Y.3d 1116, 1119–1120, 45 N.Y.S.3d 345, 68 N.E.3d 70 ; see People v. Harris, 19...