People v. Pendelton

• Decision Date: 15 December 2011
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State Of New York, Respondent, v. Khalan PENDELTON, Appellant.

2011 N.Y. Slip Op. 09041

90 A.D.3d 1234

934 N.Y.S.2d 611

The PEOPLE of the State Of New York, Respondent,

v.Khalan PENDELTON, Appellant.

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

Dec. 15, 2011.

Theresa M. Suozzi, Saratoga Springs, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: MERCURE, Acting P.J., PETERS, MALONE JR., KAVANAGH and STEIN, JJ.

MALONE JR., J.

Appeal from a judgment of the County Court of Schenectady County (Clark, J.), rendered November 24, 2008, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and menacing in the second degree.

In October 2007, based upon allegations that defendant threatened to shoot a group of people gathered near the porch of his apartment building and displayed a handgun to them, defendant was charged by indictment with criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree and menacing in the second degree. Following a jury trial, defendant was convicted of criminal possession of a weapon in the second degree and menacing in the second degree. County Court thereafter sentenced defendant to an aggregate prison term of 12 1/2 years, with 3 1/2 years of postrelease supervision. Defendant appeals.

Initially, defendant contends that the evidence is legally insufficient to support his conviction of criminal possession of a weapon in the second degree because there is no proof to establish that he possessed a gun or intended to use it unlawfully.¹ We disagree. Defendant's possession of the handgun was established by the testimony of two witnesses who were in the group of people congregated near defendant's apartment that they observed defendant display a black object protruding from the waistband of his pants, which they recognized as a gun, shortly after defendant had stated that he was going to “hammer everybody.” ² After defendant displayed the handgun, one individual in the group called the police, who arrived shortly thereafter and found a loaded handgun, ammunition and defendant's identification during a search of defendant's apartment. In addition, defendant's statement to the police after his arrest was introduced at trial. In it defendant admitted that he resided in the apartment that had been searched, and that earlier that day he had threatened to “hammer” the group of people, went into his apartment to obtain the handgun, placed it in his waistband and then showed it to some men on the porch. Defendant's possession of the handgun thus established ( see People v. Gangar, 79 A.D.3d 1262, 1263, 912 N.Y.S.2d 321 [2010], lv. denied 16 N.Y.3d 831, 921 N.Y.S.2d 195, 946 N.E.2d 183 [2011] ), the jury was entitled to infer from such possession that defendant had intended to use the handgun unlawfully ( see Penal Law § 265.15[4]; People v. Solomon, 78 A.D.3d 1426, 1428, 911 N.Y.S.2d 514 [2010], lvs. denied 16 N.Y.3d 899, 900, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ).

Defendant's argument that the evidence is legally insufficient to support the conviction of criminal possession of a weapon in the second degree because there is no proof that the handgun was operable is not preserved for appellate review because defendant did not raise any issue with respect to the gun's operability in his motion to dismiss this count of the indictment ( see People v. Green, 84 A.D.3d 1499, 1500, 923 N.Y.S.2d 297 [2011] ). To the extent that defendant argues that the conviction is against the weight of the evidence based on the lack of evidence of the gun's operability, we are not convinced inasmuch as proof was offered at trial that an evidence technician tested the gun and determined that it was operable one day after it was recovered from defendant's apartment. To the extent that defendant's arguments regarding the operability of the gun can be read as a challenge to the legal sufficiency and the weight of the evidence supporting his conviction of menacing in the second degree, we find that the legal sufficiency argument is not preserved due to defendant's failure to challenge such in the motion to dismiss ( see id.), and, in light of the evidence that the gun was indeed operable, we are not convinced that such conviction is against the weight of the evidence.

Next, we are not convinced that County Court (Drago, J.) erred in denying defendant's motion to suppress oral and written statements that he made to the police after his arrest. The...