People v. Ruffin

• Decision Date: 25 February 2021
• Docket Number: 111157
• Citation: 191 A.D.3d 1174,143 N.Y.S.3d 134
• Parties: The PEOPLE of the State of New York, Respondent, v. Earnest T. RUFFIN, Appellant.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 1174

143 N.Y.S.3d 134

The PEOPLE of the State of New York, Respondent,

v.Earnest T. RUFFIN, Appellant.

111157

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

Calendar Date: January 7, 2021

Decided and Entered: February 25, 2021

Theresa M. Suozzi, Saratoga Springs, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered March 28, 2019, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and criminal mischief in the fourth degree and the violation of unlawful possession of marihuana.

In January 2018, police responded to a 911 call placed by the victim, who reported that defendant had kicked in her apartment door and may have been armed with a weapon. Upon responding to the scene, police apprehended defendant and seized a duffel bag from a stairwell near the victim's apartment, which contained, among other things, various types of ammunition, a Springfield Armory handgun and a black Mossberg shotgun. In connection therewith, defendant was charged by indictment with burglary in the second degree (count 1), criminal possession of a weapon in the second degree (count 2), criminal possession of a weapon in the third degree (count 3), criminal possession of a weapon in the fourth degree (count 4), criminal mischief in the fourth degree (count 5) and unlawful possession of marihuana (count 6).¹ Defendant moved to suppress the evidence seized from the duffel bag and requested a Mapp/Dunaway hearing to determine the admissibility thereof. County Court summarily denied defendant's motion, finding that he failed to assert any expectation of privacy in the duffel bag that would entitle him to a hearing on the issue. Thereafter, County Court partially granted the People's Sandoval and Molineux proffers, allowing them to submit certain evidence regarding defendant's prior convictions, statements he had made on telephone calls while incarcerated pending trial and photographs seized from his cell phone.

Defendant's first trial ended in a mistrial and he was retried on the charges in January 2019. County Court's Sandoval and Molineux rulings were incorporated into the retrial and defendant admitted on the record that he had previously been convicted of manslaughter in the first degree (see Penal Law § 125.20[1] ). Following completion of the retrial, defendant was acquitted of count 1 and convicted of counts 2, 3, 5 and 6.² He was sentenced, as a second violent felony offender, to a prison term of 15 years, with five years of postrelease supervision, upon the conviction of criminal possession of a weapon in the second degree and to lesser concurrent terms of incarceration or time served on the remaining convictions.³ Defendant appeals.

Defendant contends that the verdict on counts 2 and 3 of the indictment – charging criminal possession of a weapon in the second and third degrees – is against the weight of the evidence because the People failed to prove that he had knowledge of the handgun found in the duffel bag or that he had constructive possession of it. We disagree. When conducting a weight of the evidence review, we must "view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, [then] weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v. Caden N., 189 A.D.3d 84, 89, 133 N.Y.S.3d 107 [2020] [internal quotation marks and citations omitted]; see People v. Callahan, 186 A.D.3d 943, 943–944, 128 N.Y.S.3d 370 [2020] ).

As relevant here, "[a] person is guilty of criminal possession of a weapon in the second degree when ... such person possesses any loaded firearm" ( Penal Law § 265.03[3] ).⁴ A "[l]oaded firearm" includes "any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm" ( Penal Law § 265.00[15] ). A person is guilty of criminal possession of a weapon in the third degree when, as relevant here, "he or she knowingly possesses any firearm and has been previously convicted of any crime" ( People v. McCoy, 169 A.D.3d 1260, 1262, 95 N.Y.S.3d 441 [2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019] ; see Penal Law §§ 265.01[1] ; 265.02[1]). For both counts, "the term ‘firearm’ means any operable pistol or revolver" ( People v. McCoy, 169 A.D.3d at 1262, 95 N.Y.S.3d 441 ; see Penal Law § 265.00[3] ; People v. Longshore, 86 N.Y.2d 851, 852, 633 N.Y.S.2d 475, 657 N.E.2d 496 [1995] ).

The possession element of such crimes "includes the Penal Law definitional component of ‘[v]oluntary act,’ which incorporates the attribute of awareness of the possession or control" ( People v. Saunders, 85 N.Y.2d 339, 341, 624 N.Y.S.2d 568, 648 N.E.2d 1331 [1995], quoting Penal Law § 15.00[2] ; see People v. J.L., 36 N.Y.3d 112, 139 N.Y.S.3d 103, 163 N.E.3d 34 [2020] ). Possession is voluntary when the defendant possesses the weapon "for a sufficient period to have been able to terminate the possession" ( People v. J.L., 139 N.Y.S.3d 103, 163 N.E.3d 34, [internal quotation marks, emphasis and citation omitted]). The People may proceed upon a theory of constructive possession, which requires proof that the "defendant exercised dominion and control over the contraband or the area where the contraband was found" ( People v. Dawson, 110 A.D.3d 1350, 1352, 973 N.Y.S.2d 850 [2013] [internal quotation marks, brackets and citations omitted], lv denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014] ; see People v. McCoy, 169 A.D.3d at 1262, 95 N.Y.S.3d 441 ).

At trial, the People entered into evidence the victim's 911 call pertaining to the incident. On the call, the victim stated that her "boyfriend [had] just broke[n][her] door open" and had pushed her to the floor, prompting her to leave her apartment. She explained that she was sitting in her car at the time of the call, identified her boyfriend as defendant, and relayed her concern that defendant had a weapon "in his bag," stating that she was "just go[ing to] drive [be]cause if he [had] a gun [she] [didn't] want him to shoot near [her] car." A neighbor of the victim testified that, upon hearing a commotion outside of her apartment, she looked through the peephole of her front door and, as relevant here, observed a man leaving the victim's apartment with a "black big bag." According to the neighbor, the man went downstairs with the bag, placed it down and stood by it.

State Trooper Kyle Conlon arrived on the scene as the incident was still unfolding and observed the victim inside of a parked SUV pointing at a man who matched the description of her boyfriend as relayed in the 911 call. Conlon observed the man "walking off the steps or the stoop area ... towards the sidewalk" and away from an area that contained a duffle bag, explaining that the victim was "pointing at [the man] in relation to the bag." After that individual was apprehended, a pat-down search of his person yielded, among other things, a driver's license bearing defendant's name, as well as a small amount of marihuana and a ski mask. Police officers later confirmed that the individual apprehended was defendant.

Police located a black duffel bag on the steps outside of the apartment complex, which contained clothing, sneakers, two masks in the shape of skulls (one of which was silver in color and the other blue), ammunition, a handgun magazine, a Springfield Armory XD 40 handgun and a Mossberg shotgun. Multiple police officers testified that, from the time they located the duffel bag until the time that defendant was placed under arrest, they did not observe any other civilians in the vicinity of the bag. The victim's neighbor also testified to that affect. Forensic analysis of the items found in the bag did not reveal any identifiable fingerprints or DNA evidence, other than indicating that male DNA was present on the grip of the handgun and on one of the masks. Police later identified the ammunition contained in the bag as 9 millimeter and .40 caliber rounds. Although the handgun was not loaded with ammunition when it was found, an expert who test-fired it using the ammunition located in the duffel bag confirmed that it was operable. Moreover, a sergeant with the State Police Pistol Permit Unit explained that a pistol permit is required to carry a Springfield Armory handgun in New York and that no such permit had been issued in defendant's name.

The People also entered into evidence audio recordings of certain telephone calls that defendant had placed while incarcerated pending trial, during which he expressed knowledge of the duffel bag and the contents located therein. To that end, defendant asked his sister on one of the calls, "what happened to the duffel bag?" On another call, he informed his sister that there was "one silver and one blue" mask located in the bag. Moreover, defendant confirmed on other calls that the "guns" were not loaded at the time of his arrest, and that "only one gun is really illegal" and "the other one is a Mossberg." At trial, defendant's sister confirmed that certain personal items found in the bag belonged to defendant, including a belt, deodorant and sneakers. The People also entered into evidence pictures extracted from defendant's cellular phone, which were taken prior to the incident, depicting blue and silver skull masks as well as a handgun that appeared to have the "Springfield Armory" emblem engrained on it.

A different verdict would not have...