People v. Parker

• Decision Date: 25 August 2021
• Docket Number: 2019-03987,Ind. 1791/16
• Parties: The People of the State of New York, respondent, v. Bruce Parker, appellant.
• Court: New York Supreme Court

2021 NY Slip Op 04766

The People of the State of New York, respondent,
v.
Bruce Parker, appellant.

No. 2019-03987, Ind. No. 1791/16

Supreme Court of New York, Second Department

August 25, 2021

Jonathan Rosenberg, PLLC, Brooklyn, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Margaret Iocco of counsel), for respondent.

REINALDO E. RIVERA, J.P. MARK C. DILLON COLLEEN D. DUFFY ANGELA G. IANNACCI PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald D. Hollie, J.), rendered March 12, 2019, convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of a firearm, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was arrested and charged, inter alia, with criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of a firearm, following the execution of a search warrant upon certain premises where the defendant resided, and which were occupied by three other adults. Among other things, the police found a loaded pistol in a cabinet above the refrigerator in the kitchen of the premises. After a jury trial, the defendant was found guilty of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and criminal possession of a firearm, upon a constructive possession theory. The defendant appeals. We affirm.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that the evidence was legally sufficient to prove 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; see Penal Law § 10.00[8]; People v Muhammad, 16 N.Y.3d 184, 188; People v Manini, 79 N.Y.2d 561, 573). "'Constructive possession may be established by direct evidence or by circumstantial evidence with inferences drawn from the facts presented in the case'" (People v Branch, 186 A.D.3d 1705, 1706, quoting People v Skyles, 266 A.D.2d 321, 322; see People v Williams, 170 A.D.3d at 1047).

Here, among other things, the evidence established that the defendant resided in the subject premises for six years, that the defendant was aware of the presence of the firearm in the kitchen cabinet above the refrigerator, that the defendant received mail at the subject premises, and that the defendant's DNA was found on the firearm. Based on the foregoing, the jury could reasonably infer that the defendant exercised dominion and control over the area where the firearm was found, and thus, that he constructively possessed it (see People v Williams, 170 A.D.3d at 1046; People v Arnold, 60 A.D.3d 960, 961; People v Skyles, 266 A.D.2d 321; see also People v Crowley, 188 A.D.3d 1665, 1666; cf. People v Brown, 133 A.D.3d 772). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348; see People v Romero, 7 N.Y.3d 633, 643-644; People v Bleakley, 69 N.Y.2d 490, 495).

The defendant's contention that the Supreme Court unduly interfered in the trial proceedings by engaging in excessive questioning of witnesses is unpreserved for appellate review (see CPL 470.05[2]; People v Charleston, 56 N.Y.2d 886, 887; People v Sookdeo, 164 A.D.3d 1268, 1269-1270; People v Maelia, 37 A.D.3d 619, 620; People v Wanton, 256 A.D.2d 125, 126; People v Johnson, 130 A.D.2d 766). Although defense counsel zealously defended the defendant and registered multiple objections, defense counsel failed to protest, even once, the conduct he now challenges on appeal (see People v Yut Wai Tom, 53 N.Y.2d 44, 56).

In any event, contrary to the defendant's contentions and the position of our dissenting colleagues, viewing the record as a whole, we find that the course of conduct by the Supreme Court did not deprive the defendant of a fair trial, nor did it prejudice the defendant. The court's conduct during this trial did not amount to improper advocacy or bias in favor of the People and against the defendant. The court did not convey to the jury any opinion on the merits of the case. Instead, upon our extensive review of this record, the court's questions were aimed at clarifying the testimony, directing the presentation of the testimony, eliciting relevant facts, and preventing confusion by the jury.

For example, the defendant challenges, and the dissent imputes error to, the Supreme Court's questioning of one of the detectives involved in the search warrant execution. The court's questioning, read in context, merely sought to clarify why another occupant of the residence was listed as the owner of certain items seized and vouchered. In other instances, the court intervened to facilitate the orderly and expeditious progress of the trial and to assist in posing questions of witnesses (see id. at 57). Indeed, during defense counsel's examination of one of the witnesses, counsel expressed appreciation for the court's assistance in formulating a question, noting "[m]uch better said than me [sic]."

The fact that more than 200 questions were asked by the Supreme Court during this trial is not dispositive. In this regard, it is the "substance and not the number of questions asked [that] is the important consideration" (id. at 58; see People v Arnold, 98 N.Y.2d 63, 67; People v Melendez, 31 A.D.3d 186, 196). Further, "[e]ven if a trial judge makes intrusive remarks that would better have been left unsaid, or questions witnesses extensively, the defendant is not thereby deprived of a fair trial so long as the jury is 'not prevented from arriving at an impartial judgment on the merits'" (People v Adams, 117 A.D.3d 109, quoting People v Moulton, 43 N.Y.2d 944, 946). "[T]he line is crossed when the judge takes on either the function or appearance of an advocate at trial" (People v Arnold, 98 N.Y.2d at 67; see People v Ojeda, 118 A.D.3d 919). Here, that line was not crossed and the conduct of the trial judge did not prevent the jury from arriving at an impartial judgment on the merits.

Notwithstanding our determination that the defendant was not deprived of a fair trial by the Supreme Court's interjections, we take this opportunity to remind trial judges that their discretion to intervene is not unfettered and must be exercised sparingly (see People v Arnold, 98 N.Y.2d at 67-68; People v Jamison, 47 N.Y.2d 882, 883).

RIVERA, J.P., DILLON, and IANNACCI, JJ., concur.

WOOTEN, J., dissents, and votes to reverse the judgment, as a matter of discretion in the interest of justice, and remit the matter to the Supreme Court, Queens County, for a new trial before a different Justice, with the following memorandum, in which DUFFY, J., concurs.

I agree with my colleagues in the majority that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt, and that the verdict of guilt was not against the weight of the evidence. However, contrary to the position of my colleagues in the majority, I find that the defendant was deprived of a fair trial by the Supreme Court's repeated and egregious questioning of witnesses. Throughout the trial, the court asked more than 200 questions of witnesses which, among other things, assisted the prosecution in eliciting significant testimony and establishing the foundation for the admissibility of evidence, characterized the testimony of witnesses, and served to undermine the defense strategy. Thus, I conclude that a new trial is warranted before a different Justice.

The following facts were elicited during the trial. On April 26, 2016, Detective Michael Yu, who worked for a narcotics division of the New York City Police Department, obtained a warrant to search an apartment in Queens for drugs, drug paraphernalia, and related money. On May 4, 2016, at approximately...