People v. Rodriguez, 3318, 5578/10.

• Decision Date: 11 April 2017
• Docket Number: 3318, 5578/10.
• Citation: 50 N.Y.S.3d 385,149 A.D.3d 464
• Parties: The PEOPLE of the State of New York, Respondent, v. Bernard RODRIGUEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 464
50 N.Y.S.3d 385

The PEOPLE of the State of New York, Respondent,
v.
Bernard RODRIGUEZ, Defendant–Appellant.

3318, 5578/10.

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

April 11, 2017.

50 N.Y.S.3d 385

Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.

FRIEDMAN, J.P., ANDRIAS, FEINMAN, KAPNICK, GESMER, JJ.

50 N.Y.S.3d 386

149 A.D.3d 464

Judgment, Supreme Court, New York County (Maxwell Wiley, J.), rendered February 7, 2014, convicting defendant, after a jury trial, of two counts of criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 3 ½ years, unanimously affirmed.

Defendant and his nephew Joshua Flores were originally charged with criminal possession of marijuana in the second degree, four counts of criminal possession of a weapon in the second degree (two charging intent to use unlawfully, and two charging possession outside the defendant's home or place of business), and criminal possession of a weapon in the fourth degree, based on the presence of marijuana and firearms in an apartment when the police executed a search warrant there on August 10, 2010. At defendant's first trial, the court dismissed the two counts that charged defendant with possessing a weapon outside his home or place of business, and the jury found defendant guilty of criminal possession of a weapon in the fourth degree and possession of marijuana in the second degree. The jury deadlocked on the two remaining counts of criminal possession of a weapon in the second degree (intent to use unlawfully). While defendant's appeal of the conviction from the first trial was pending, he was retried before another justice and a jury and convicted of the two remaining counts.

In his appeal from the first conviction, defendant argued, inter alia, that the trial court's preclusion of several text message conversations retrieved from his nephew's cell phone denied him the right to present his defense that it was his codefendant nephew who had a drug business and possessed the weapons in furtherance of the business. In unanimously affirming his conviction, we found that the prosecution had proven defendant's knowing constructive possession of the

149 A.D.3d 465

contraband, (110 A.D.3d 456, 457, 973 N.Y.S.2d 49 [1st Dept.2013], lv. denied 23 N.Y.3d 1066, 994 N.Y.S.2d 325, 18 N.E.3d 1146 [2014] ). Although we agreed with defendant that a number of the text messages were nonhearsay and were admissible, we held that their preclusion was harmless error, because the two messages that were admitted were "similar" to the others, and the additional messages would not have affected the verdict (110 A.D.3d at 458, 973 N.Y.S.2d 49 ). We held that the error "did not rise to the level of depriving defendant of his right to present a defense" (id. ).

In this appeal, defendant contends that he was deprived of his federal and state due process rights to a fair trial and to present a defense (see generally Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 [1973] ). Here, the trial court denied him permission to present any of the many text messages to the jury. It also precluded introduction of a photograph from his nephew's cell phone showing the nephew holding one of the firearms at issue. Additionally, it did not allow the jury to hear of the nephew's guilty plea to attempted possession of one of the firearms. During a colloquy between the court and the parties' counsel, before the jury entered, the court was informed that the first trial court had allowed two text messages and the photograph to be presented to the jury. The judge indicated his disagreement with that earlier ruling, finding that none of this evidence was relevant to refuting the charges, nor was it exculpatory; at best, it showed that the nephew was involved in the drug business, but it did not show that defendant was not involved. Because this trial took place while the first appeal was...