People v. Shoga

• Citation: 933 N.Y.S.2d 126,2011 N.Y. Slip Op. 07873,89 A.D.3d 1225
• Parties: The PEOPLE of the State of New York, Respondent, v. Alex R. SHOGA, Appellant.
• Decision Date: 10 November 2011
• Court: New York Supreme Court Appellate Division

2011 N.Y. Slip Op. 07873
89 A.D.3d 1225
933 N.Y.S.2d 126

The PEOPLE of the State of New York, Respondent,
v.
Alex R. SHOGA, Appellant.

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

Nov. 10, 2011.

[933 N.Y.S.2d 128]

Theresa M. Suozzi, Saratoga Springs, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: MERCURE, J.P., PETERS, STEIN, GARRY and EGAN JR., JJ.

GARRY, J.

[89 A.D.3d 1225] Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered December 3, 2009, convicting defendant following a nonjury trial of the crimes of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts), criminal possession of a controlled substance in the fifth degree, tampering with physical evidence and perjury in the first degree.

In 2008, the Broome County Sheriff's Office received information from a confidential informant (hereinafter CI) indicating, among other things, that defendant would be returning from New York City, where he had allegedly purchased cocaine for resale. Officers obtained a search warrant permitting the search of defendant's person, any car in which he was traveling, and an apartment in the City of Binghamton, Broome County where he allegedly resided. Shortly thereafter, officers pulled over a vehicle driven by defendant to execute the warrant. No contraband was found in the vehicle or on defendant's person. Defendant was taken to the Sheriff's Office and placed in an interview room, where certain belongings that had been found in the search of his person—including a key—were placed on a table. After advising defendant that the apartment was about to be searched, officers left him

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alone in the interview room for a few minutes. When they returned, the key had disappeared, and defendant was coughing, pounding his chest, and requesting a drink of water. Upon searching the apartment, officers found cocaine and a loaded gun that had its serial number removed. Nine days later, a correction officer found a key on the sink in defendant's cell at the Broome County Correctional Facility. Investigators determined that this key fit the lock from the apartment door.

Defendant was indicted on charges of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree (two counts), criminal possession of a controlled substance in the third and fifth degrees, and tampering [89 A.D.3d 1226] with physical evidence. At a preliminary hearing, defendant denied under oath that he was carrying a key to the apartment when he was pulled over. He was then indicted for perjury in the first degree, and County Court granted the People's motion to consolidate the indictments.

Defendant was convicted of all charges following a nonjury trial, except for criminal possession of a controlled substance in the third degree. County Court sentenced him as a second felony offender to an aggregate prison term of eight years and five years of postrelease supervision for all of the convictions except the perjury charge, upon which he was sentenced to 2 to 4 years, to run consecutively to the other sentences. Defendant appeals.

Defendant first contends that critical proof is lacking as to all of his convictions because physical evidence consisting of the key and certain photographs of the gun should not have been admitted at trial. He asserts that the key was inadmissible because of a gap in the chain of custody consisting of a cut in the evidence bag that contained it as well as inconsistent testimony as to its color. We disagree. Where, as here, “an object possesses unique characteristics or markings and is not subject to material alteration which is not readily apparent, a simple identification is sufficient to warrant admission” even when a chain of custody is not fully established ( People v. Julian, 41 N.Y.2d 340, 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310 [1977] [internal quotation marks and citation omitted]; accord People v. Roblee, 83 A.D.3d 1126, 1127, 920 N.Y.S.2d 467 [2011], lv. denied 17 N.Y.3d 809, 929 N.Y.S.2d 569, 953 N.E.2d 807 [2011] ). The key was first secured as an item of evidence by the correction officer who found it in defendant's cell. At trial, he identified the key as the same one he had found based on its color and markings, and he testified that it was in the same condition as when he found it. A detective explained the cut in the evidence bag by testifying that he made the cut to remove the key from the bag in order to test it in the apartment lock, and then replaced it in the bag and sealed the cut with tape. He realized only at trial that he had forgotten to initial the seal. In light of the testimony, the key was properly admitted based on “reasonable assurances of [its] identity and unchanged condition” ( People v. Julian, 41 N.Y.2d at 343, 392 N.Y.S.2d 610, 360 N.E.2d 1310 [internal quotation marks and citation omitted] ). The discrepancies in the witness testimony describing the key go to the weight of this evidence rather than its admissibility ( see People v. Welch, 71 A.D.3d 1329, 1331, 897 N.Y.S.2d 546 [2010], lv. denied 15 N.Y.3d 811, 908 N.Y.S.2d 171, 934 N.E.2d 905 [2010]; People v. Wynn, 176 A.D.2d 375, 377, 574 N.Y.S.2d 83 [1991] ).

Defendant also contends that photographs of the gun should not have been admitted, because they were taken after a

[933 N.Y.S.2d 130]

deputy removed the gun from the dresser drawer and then replaced it [89 A.D.3d 1227] to be photographed. However, the deputy testified that the only change he made in the gun's condition during the removal was to render it safe by removing the magazine and bullets, and that the gun was otherwise in the same condition and location in which it was found when the photographs were taken. Given this explanation, the People's photographs were not introduced to falsify the conditions under which the gun was found or otherwise mislead the factfinder, and the change in the gun's condition also went to the issue of weight rather than admissibility ( see People v. Gerber, 182 A.D.2d 252, 263–264, 589 N.Y.S.2d 171 [1992], lv. denied 80 N.Y.2d 1026, 592 N.Y.S.2d 676, 607 N.E.2d 823 [1992]; compare People v. Davis, 10 A.D.3d 583, 583, 782 N.Y.S.2d 86 [2004], lv. denied 4 N.Y.3d 743, 790 N.Y.S.2d 655, 824 N.E.2d 56 [2004] ).

Defendant next challenges the sufficiency and weight of the evidence supporting his convictions for criminal possession of weapons and controlled substances, arguing that the People failed to show constructive possession of the weapon and cocaine by demonstrating that he “had dominion and control over the area where the contraband was found” ( People v. Edwards, 39 A.D.3d 1078, 1079, 834 N.Y.S.2d 575 [2007]; see Penal Law § 10.00[8]; § 220.06[5]; § 265.02[1], [3]; § 265.03[1][b]; People v. Paige, 77 A.D.3d 1193, 1196, 911 N.Y.S.2d 176 [2010], affd. 16 N.Y.3d 816, 920 N.Y.S.2d 777, 945 N.E.2d 1028 [2011] ). The apartment's lessee testified that she permitted defendant to use the apartment and keep belongings there, although his name was not on the lease and he did not pay rent. She testified that she gave him a key to the apartment so that he could come and go when she was not at home, and that he visited the apartment several times a week, spent the night there at times, and kept his belongings in various locations in the apartment, including a certain drawer in a bedroom dresser. She had emptied the drawer before allowing defendant to use it and had never seen the weapon or drugs in the apartment. Although her former boyfriend and two other people had briefly stayed in the apartment, she testified that they had departed before defendant arrived. The officers who searched the apartment testified that they found the gun and cocaine in the same drawer that the lessee had identified as defendant's, and that this drawer also contained male clothing and mail addressed to defendant, including an envelope directed to him at the apartment's street address. Viewed in the light most favorable to the People, this evidence was legally sufficient to establish that he had dominion and control over the area where the contraband was found ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; People v. Robinson, 72 A.D.3d 1277, 1277–1278, 898 N.Y.S.2d 365 [2010], lv. denied 15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903 [2010]; People v. Sawyer, 23 A.D.3d 845, 846, 804 N.Y.S.2d 142 [2005], lv. denied 6 N.Y.3d 852, 816 N.Y.S.2d 758, 849 N.E.2d 981 [2006]; compare People v. Oldacre, 53 A.D.3d 675, 678–679, 861 N.Y.S.2d 444 [2008] ). Further, contrary to defendant's claim, evidence that he possessed a loaded firearm, [89 A.D.3d 1228] together with the statutory presumption of intent arising from such possession, was legally sufficient to establish his intent to use the gun against another for purposes of his conviction for criminal possession of a weapon in the second degree ( see Penal Law § 265.03[1][b]; § 265.15 [4]; People v. Vargas, 60 A.D.3d 1236, 1238, 875 N.Y.S.2d 625 [2009], lv. denied 13 N.Y.3d 750, 886 N.Y.S.2d 104, 914 N.E.2d 1022 [2009] ). The convictions are supported by legally

[933 N.Y.S.2d 131]

sufficient evidence and, viewing the evidence in a neutral light and deferring to the factfinder's resolution of issues of credibility, the convictions are also not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; People v. Paige, 77 A.D.3d at 1196, 911 N.Y.S.2d 176; People v. Waters, 30 A.D.3d 681, 681, 817 N.Y.S.2d 402 [2006], lv. denied 7 N.Y.3d 796, 821 N.Y.S.2d 826, 854 N.E.2d 1290 [2006] ).

Defendant next challenges his conviction for tampering with physical evidence, contending that the People failed to prove that “[b]elieving that certain physical evidence [was] about to be produced or used in an official proceeding...