People v. Kabia

190 A.D.3d 1105

139 N.Y.S.3d 443

The PEOPLE of the State of New York, Respondent,

v.Ahzallam KABIA, Appellant.

110372

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

Calendar Date: December 17, 2020

Decided and Entered: January 14, 2021

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Lynch, J.P., Clark, Mulvey, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the County Court of Albany County (Carter, J.), rendered February 15, 2018, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree.

In April 2017, police officers with the City of Albany Police Department initiated a traffic stop of a vehicle in which defendant was a passenger. A sawed-off shotgun was ultimately discovered inside the vehicle, which led to the discovery of a shotgun shell on defendant's person. Defendant was consequently indicted on the charge of criminal possession of a weapon in the second degree. Defendant unsuccessfully moved to suppress the physical evidence found in the vehicle and on his person and, after a jury trial, was convicted as charged. County Court sentenced defendant to a prison term of 10 years, followed by five years of postrelease supervision. Defendant appeals.

Defendant argues that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence. However, defendant's legal sufficiency challenge is not preserved for our review, as his trial motion to dismiss did not include the arguments he now raises on appeal (see e.g. People v. Delbrey, 179 A.D.3d 1292, 1292, 117 N.Y.S.3d 356 [2019], lv denied 35 N.Y.3d 969, 125 N.Y.S.3d 33, 148 N.E.3d 497 [2020] ; People v. Van Alphen, 167 A.D.3d 1076, 1077, 89 N.Y.S.3d 445 [2018], lv denied 32 N.Y.3d 1210, 99 N.Y.S.3d 233, 122 N.E.3d 1146 [2019] ). Nevertheless, as part of our weight of the evidence review, we necessarily determine whether the People proved each element of the crime charged beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ; People v. Chaneyfield, 157 A.D.3d 996, 996, 69 N.Y.S.3d 144 [2018], lv denied 31 N.Y.3d 1012, 78 N.Y.S.3d 282, 102 N.E.3d 1063 [2018] ). As relevant here, a person is guilty of criminal possession of a weapon in the second degree when he or she knowingly possesses a loaded and operable firearm outside of his or her home or place of business (see Penal Law § 265.03[3] ). The discovery of a firearm within a vehicle gives rise to a permissive presumption that the firearm was knowingly possessed by all persons in the vehicle at the time of its discovery (see Penal Law § 265.15[3] ; People v. Smith, 177 A.D.3d 1190, 1190, 114 N.Y.S.3d 497 [2019], lv denied 34 N.Y.3d 1163, 120 N.Y.S.3d 275, 142 N.E.3d 1177 [2020] ; People v. Sostre, 172 A.D.3d 1623, 1625–1626, 100 N.Y.S.3d 768 [2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 726, 133 N.E.3d 429 [2019] ).

The trial evidence established that a vehicle in which defendant was a passenger was stopped by police for, among other things, bearing a license plate that did not match the vehicle. Testimony, as well as video footage of the traffic stop, revealed that defendant – who was seated in the rear passenger seat – bent over to the left after the police initiated the traffic stop. As established by the evidence, a sawed-off shotgun was ultimately discovered under the rear portion of the driver's seat and a shotgun shell was thereafter located on defendant's person, in the left pocket of his pants. The evidence demonstrated that the shotgun was loaded and operable and that the shell in the shotgun was of the same caliber and make as the shell found on defendant's person. Defendant argued at trial that he was intoxicated and unaware of the shotgun's presence in the vehicle and that the police planted the shotgun shell on his person. Given this defense, as well as the permissive nature of the automobile presumption, it would not have been unreasonable for the jury to have reached a different verdict. However, the jury rejected the defense and when we view the evidence in a neutral light and defer to the jury's credibility determinations, we find that the verdict is amply supported by the weight of the evidence (see People v. Kalabakas, 183 A.D.3d 1133, 1141–1142, 124 N.Y.S.3d 448 [2020], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 407, 152 N.E.3d 1209 [2020] ; People v. Smith, 177 A.D.3d at 1191, 114 N.Y.S.3d 497 ).

Defendant also challenges the denial of his motion to suppress the physical evidence found in the vehicle and on his person. In denying the motion, County Court found that the...