People v. Ward
| Decision Date | 12 April 2001 |
| Parties | (A.D. 3 Dept. 2001) THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v WILLIAM E. WARD JR., Appellant. 11458 : THIRD JUDICIAL DEPARTMENT |
| Court | New York Supreme Court — Appellate Division |
[Copyrighted Material Omitted]
Andrew H. Van Buren, Hobart, for appellant.
Richard D. Northrup Jr., District Attorney, Delhi, for respondent.
Before: Mercure, J.P., Crew III, Mugglin, Rose and Lahtinen, JJ.
Appeal from a judgment of the County Court of Delaware County (Estes, J.), rendered June 14, 1999, upon a verdict convicting defendant of the crime of criminal possession of a dangerous weapon in the first degree.
By indictment filed in December 1998, defendant was accused of criminal possession of a dangerous weapon in the first degree and conspiracy in the second degree. As a result of pretrial motions, the count charging conspiracy in the second degree was dismissed. Following a jury trial, defendant was found guilty of the remaining count and sentenced to a determinate term of 25 years in prison. Defendant now appeals.
The prosecution's case rested primarily upon the testimony of Kenneth Powers who testified that defendant asked him to help murder defendant's estranged girlfriend by "blowing her up". According to Powers, the murder was to be accomplished by the placement of a "pipe bomb" adjacent to the exhaust manifold of the victim's automobile when it was in the parking lot at her place of employment, so that the bomb would kill not only her, but also her new paramour. Powers claimed that defendant agreed to pay him $500 from the proceeds of a life insurance policy on the ex-girlfriend's life for planting the pipe bomb.
Powers and defendant went to a local store in an unsuccessful attempt to obtain shotgun shells that would be used to construct the bomb. Eventually, defendant obtained the necessary shotgun shells, constructed the bomb and subsequently exhibited it to Powers. After consulting various texts at a local library, defendant informed Powers that he wanted "the bitch dead" and told Powers where to place the pipe bomb on the automobile to achieve detonation. At that point, Powers realized that the bombing was imminent and contacted the State Police, who placed an electronic eavesdropping device on Powers and a transmitting device in his residence. Several hours later, defendant came to Powers' residence to discuss the final plans and the police recorded the conversation. Upon leaving, defendant was arrested and the State Police obtained a search warrant for his residence. Execution of the warrant resulted in the recovery of the pipe bomb and materials used in its construction.
Defendant argues on appeal that he is entitled to reversal of his conviction since the verdict is against the weight of the evidence, County Court erred by failing to grant a trial order of dismissal, the supplemental charge given by County Court infringed upon his right to a fair trial, County Court erred by failing to impose appropriate sanctions for Rosario violations, destruction of the pipe bomb denied him a fair trial and he was denied the effective assistance of counsel. In the alternative, defendant requests that this Court modify his sentence, claiming that it is unduly harsh and excessive. The People contend that there is no merit to any of the errors alleged by defendant.
First, defendant asserts that the jury's verdict is against the weight of the evidence because there was no valid line of reasoning from which the jury could correctly conclude that the pipe bomb contained an "explosive substance" or that it was capable of exploding. To evaluate whether the jury gave proper weight to the evidence, we must review the entirety of the record to determine if a different verdict would not have been unreasonable and, if so, we are required to "'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'" (People v Bleakley, 69 N.Y.2d 490, 495, quoting People ex rel. MacCracken v Miller, 291 N.Y. 55, 62). If the jury has failed to accord the evidence its proper weight, the verdict may be set aside (see, People v Bleakley, supra, at 495). Applying these rules here, we are convinced that the jury properly weighed the trial evidence. It is the jury's function to resolve issues of credibility and to accept or reject all or part of the testimony (see, People v Holland, ___ A.D.2d ___, ___, 719 N.Y.S.2d 320, 321). There is no question that the jury performed this function because it resolved the question presently raised by defendant in favor of the People by accepting the testimony of the police witnesses and rejecting the view of defendant's expert that the bomb was not an explosive substance since it was incapable of exploding.
Defendant next argues that his motion for dismissal at the conclusion of the People's case should have been granted since there was insufficient proof to establish beyond a reasonable doubt that the pipe contained an explosive substance. We disagree since our review of the evidence, when viewed in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620, 621), reveals a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury" (People v Bleakley, 69 N.Y.2d 490, 495). A member of the State Police Bomb Disposal Unit testified that the pipe bomb emitted white smoke when it was detonated, which is indicative of doublebase smokeless gunpowder. He further testified that the pipe bomb was readily capable of exploding when exposed to a source of sufficient heat, such as an automobile exhaust manifold. Further, the supervisor of the Bomb Disposal Unit testified that the pipe contained gunpowder residue. Finally, the term "explosive substance" retains its everyday common sense meaning since it is undefined in the Penal Law (see, People v Cruz, 34 N.Y.2d 362, 370). Therefore, the jury could logically find that gunpowder was present in the device and that it was an "explosive substance". The evidence being legally sufficient, County Court did not err in denying defendant's motion for a trial order of dismissal.
We next consider defendant's argument that County Court's detailed supplemental instruction regarding constructive possession created a presumption of possession, effectively diminishing the burden of the People, and was unnecessary to appropriately respond to the jury's question (see, CPL 310.30). We find no merit to defendant's position. When a jury requests additional instructions or clarification of information previously charged, the court, in the exercise of sound discretion, is obligated to respond in a meaningful fashion (see, People v Almodovar, 62 N.Y.2d 126, 131). It is the court's function to interpret the question posed by the jury (see, People v Ellis, 183 A.D.2d 534, 536, affd 81 N.Y.2d 854) and to calculate what information is best suited to eliminate the apparent jury confusion (see, CPL 310.30). The concept of constructive possession was included in the original charge and defendant did not object at that time. Since the supplemental charge merely elaborated on previously charged material, defendant cannot now claim that his right to a fair trial was infringed. Moreover, the bill of particulars provided by the People indicated an intention to rely on the concept of constructive possession, effectively eliminating any surprise to defendant at trial.
Although defendant demanded Rosario material pretrial (see, People v Rosario, 9 N.Y.2d 286, cert denied 368 U.S. 866; see also, CPL 240.45 [1]), it is apparent that the People failed to timely disclose a bomb disposal report and the investigative notes generated as a result of the search of defendant's apartment. On appeal, defendant asserts that County Court erred by failing to impose appropriate...
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