People v. Rawlinson

• Citation: 97 N.Y.S.3d 319,170 A.D.3d 1425
• Decision Date: 28 March 2019
• Docket Number: 108187
• Parties: The PEOPLE of the State of New York, Respondent, v. Terrence RAWLINSON, Appellant.
• Court: New York Supreme Court Appellate Division

170 A.D.3d 1425
97 N.Y.S.3d 319

The PEOPLE of the State of New York, Respondent,
v.
Terrence RAWLINSON, Appellant.

108187

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

Calendar Date: February 14, 2019
Decided and Entered: March 28, 2019

97 N.Y.S.3d 321

Henry C. Meier, Delmar, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

Before: Clark, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J.P.

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Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered January 7, 2016, upon a verdict convicting defendant of the crimes of attempted assault in the first degree and criminal possession of a weapon in the second degree.

On the evening of January 11, 2015, police responded to a 911 call reporting that gunshots had been fired in the direction of a residence in the Town of Colonie, Albany County and that the 911 caller was following the vehicle in which the suspected perpetrator was an occupant. The police subsequently initiated a felony traffic stop of the vehicle identified by the 911 caller and, after all four occupants exited, a loaded .38 caliber pistol was recovered from the floor beneath the right rear passenger seat where defendant had been sitting. Defendant was subsequently charged with attempted murder in the second degree, attempted assault in the first degree, criminal possession of a weapon in the second degree and two counts of endangering the welfare of a child. Following a jury trial, defendant was convicted of attempted assault in the first degree and criminal possession of a weapon in the second degree, but acquitted of the remaining charges. Defendant was sentenced to two concurrent prison terms of 13 years, followed by five years of postrelease supervision. Defendant now appeals, and we affirm.

Contrary to defendant's contention, the jury verdict is not against the weight of the evidence. As relevant here, a conviction for attempted assault in the first degree requires proof that, "[w]ith intent to cause serious physical injury to another person," the defendant attempted to cause "such injury ... by means of a deadly weapon" ( Penal Law §§ 110.00, 120.10[1] ; see People v. Harwood , 139 A.D.3d 1186, 1187, 31 N.Y.S.3d 310 [2016], lv denied 28 N.Y.3d 1028, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ). A conviction for criminal possession of a weapon in the second degree requires proof that the defendant knowingly possessed a loaded and operable firearm outside of his or her home or place of business (see Penal Law § 265.03[3] ; People v. Worthington , 150 A.D.3d 1399, 1400, 55 N.Y.S.3d 743 [2017], lv denied 29 N.Y.3d 1095, 63 N.Y.S.3d 12, 85 N.E.3d 107 [2017] ; CJI2d[NY] Penal Law § 265.03[3] ). A defendant's possession of the firearm may be actual or constructive, with the latter requiring proof that the defendant exercised dominion and control over the contraband by a sufficient level of control over the area in which it was found or over the person from whom it was seized (see Penal Law § 10.00[8] ; People v. Manini , 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ). Further, subject

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to certain exceptions not applicable here, "[t]he presence in an automobile ...

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of any firearm ... is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon ... is found" ( Penal Law § 265.15[3] ; accord People v. Oliver , 135 A.D.3d 1188, 1190, 23 N.Y.S.3d 696 [2016], lv denied 27 N.Y.3d 1003, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ).

The trial evidence established that the victim and defendant's father had gotten into a physical altercation several hours prior to the shooting, and defendant testified that he traveled to the area from his home in Pennsylvania after learning of the fight. The victim and the victim's wife both testified that, on the evening after the fight, the victim and two others were on the victim's porch when two individuals – one of whom they identified as defendant – approached their home with a large dog.¹ The victim stated that, after an exchange of words, defendant fired several shots in his direction and then fled. The victim's wife stated that, although she had seen the individuals approach, she was in the basement when she heard the gunshots and she immediately ran upstairs to see what happened and then called 911 as she jumped into her car to pursue the shooter. Testimony from several police officers established that the vehicle identified by the victim's wife was thereafter stopped, that the occupants were removed from the vehicle and that a handgun was recovered from the right rear passenger floor, where defendant had been sitting. The evidence further demonstrated that a projectile was recovered from inside the victim's home, that the recovered handgun contained one live bullet and four spent casings, that the handgun was test-fired and determined to be operable and that forensic testing yielded a partial DNA profile that was insufficient for comparison purposes. As established by police testimony and an audio recording of one of defendant's police interviews, defendant confessed to owning the handgun – about which he demonstrated considerable knowledge – and firing the gun in the victim's direction.

Defendant testified on his own behalf and stated that he had falsely confessed as a result of pressure from the other three occupants of the vehicle, one of whom he allegedly owed for previously taking the blame for a crime that he had committed. Additionally, in conflict with his statement to police, defendant asserted at trial that he and five others had traveled to the victim's house in two vehicles, that he was in the second vehicle to arrive at the residence and that, as he was approaching

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the victim's home, he saw one of the occupants from the first vehicle fire several gunshots in the direction of the victim. He testified that the gun belonged to one of his companions and posited that, after he exited the stopped vehicle at the direction of police, his companion must have placed the gun on the right rear passenger floor. Given defendant's testimony, as well as the absence of any forensic evidence recovered from the firearm, it would not have been unreasonable for the jury to have credited defendant's version of events and acquitted him of all charges (see People v. Martinez , 166 A.D.3d 1292, 1294–1295, 88 N.Y.S.3d 665 [2018], lv denied 32 N.Y.3d 1207, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 WL 1200070 [Feb. 25, 2019] ). However, when we view the evidence in a neutral light and accord deference to the jury's credibility determinations, we conclude that the jury's verdict – which necessarily included findings that defendant fired several shots in the direction of the victim with the intent of causing him serious physical injury and that defendant knowingly possessed the

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firearm at the time of the felony traffic stop² – is supported by the weight of the evidence (see People v. Worthington , 150 A.D.3d at 1401–1402, 55 N.Y.S.3d 743 ; People v. Lanier , 130 A.D.3d 1310, 1311, 15 N.Y.S.3d 241 [2015], lv denied 26 N.Y.3d 1009, 20 N.Y.S.3d 550, 42 N.E.3d 220 [2015] ; People v. Portee , 56 A.D.3d 947, 949–950, 867 N.Y.S.2d 564 [2008], lvs denied 12 N.Y.3d 820, 881 N.Y.S.2d 27, 28, 908 N.E.2d 935, 936 [2009] ; People v. Young , 51 A.D.3d 1055, 1056, 856 N.Y.S.2d 711 [2008], lv denied 11 N.Y.3d 796, 866 N.Y.S.2d 622, 896 N.E.2d 108 [2008] ).

We also reject defendant's assertion that the People failed to provide notice of their intention to offer testimony from the victim regarding an out-of-court identification of defendant, as required by CPL 710.30. Pursuant to CPL 710.30, "[w]henever the [P]eople intend to offer at a trial ... testimony regarding an observation of the defendant...