People v. Malloy

212 N.Y.S.3d 756

The PEOPLE of the State of New York, Respondent.

v.Deauntta MALLOY, Appellant.

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

Calendar Date: April 22, 2024

Decided and Entered: June 13, 2024

Rosenberg Law Firm, Brooklyn (Jonathan Rosenberg of counsel), for appellant.

P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.

Before: Gariy, P.J., Clark, Fisher and Powers, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), rendered August 10, 2021 in Albany County, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree.

After the police discovered a loaded handgun and over a pound of marihuana while executing a search warrant, defendant was indicted on charges of criminal possession of a weapon in the second degree and criminal possession of marihuana in the second degree. Following the denial of his motion to suppress the gun and marihuana, defendant proceeded to a jury trial and was ultimately convicted of the gun charge but acquitted of the marihuana charge. Supreme Court sentenced defendant, as a second felony offender, to a prison term of 10 years, to be followed by five years of postrelease supervision. Defendant appeals, and we affirm.

[1, 2] To begin, defendant argues that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence. Subject to an exception not applicable herein, "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" (People v. Taylor, 207 A.D.3d 806, 808, 171 N.Y.S.3d 634 [3d Dept. 2022], lv denied 39 N.Y.3d 942, 177 N.Y.S.3d 520, 198 N.E.3d 763 [2022]; see Penal Law § 265.03[3]). "A defendant may be found to possess a firearm through actual, physical possession or through constructive possession – the latter of which requires proof that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the weapon is found" (People v. Bryant, 200 A.D.3d 1483, 1486, 161 N.Y.S.3d 399 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted], appeal dismissed 38 N.Y.3d 1158, 174 N.Y.S.3d 348, 195 N.E.3d 55 [2022]; accord People v. Watts, 215 A.D.3d 1170, 1171-1172, 187 N.Y.S.3d 848 [3d Dept. 2023]). "Constructive possession may be established through circumstantial evidence[ ] and does not require proof that a defendant has exclusive access to the area where a weapon is found" (People v. Watts, 215 A.D.3d at 1172, 187 N.Y.S.3d 848 [internal quotation marks, brackets and citations omitted]).

[3] Between June and August 2019, officers from the City of Albany Police Department conducted early-morning surveillance operations of a multifamily residence located on Hamilton Street in the City of Albany. On five of those mornings, they observed defendant leaving the residence carrying a black bag. Defendant was accompanied by a woman and two young children in at least one instance. On August 21, 2019, the last of these occasions, the police saw defendant leave the residence with a black bag, enter a vehicle, put the bag on the front passenger seat and drive away. Knowing that defendant’s driver’s license was revoked, the police conducted a traffic stop and arrested him. An officer saw the black bag on the front passenger seat, opened the front passenger door and immediately detected a strong odor of marihuana. Upon unzipping the bag, the officer found a house key as well as a large quantity of marihuana packaged in numerous small plastic bags. A detective then applied for a warrant to search the Hamilton Street residence.

While awaiting issuance of the warrant, officers used the key found in the black bag to open and enter the apartment and secure the premises. The woman previously seen with defendant was present in the apartment. Once the warrant was issued, the police searched the apartment. In the closet of one of the bedrooms, they found men’s clothing and shoes, as well as 1.4 pounds of marihuana inside a plastic bag. During the search of that bedroom, the police also found a loaded handgun hidden between the mattress and box spring. The gun had three rounds of ammunition in the magazine and one round in the chamber. The gun was later tested and found to be operable.

Following his arrest, defendant was provided an opportunity to use the telephone, and a recording of such call was introduced into evidence. In that recording, defendant could be heard speaking to a woman, who told him that the apartment had been searched and that she had a copy of the search warrant. Defendant told the woman that the police asked him "whose was it" and that they said the woman could be charged with possessing "it." When the woman told defendant that she was going to speak to the police, he stated, "you don’t have to talk to them … it’s mine." Defendant also said that the police had told him there was "a bullet in the chamber, but I don’t know how that was," and that they had said there were "three in the thing and one in the head, but there never was one in the head." According to a detective, "one in the head" means that there was a round of ammunition in the chamber of the gun.

On appeal, defendant argues that the People failed to prove his constructive possession of the gun. However, viewed in the light most favorable to the People and affording them every permissible inference, the foregoing proof – including defendant’s possession of a key to the apartment, the presence of men’s clothing and shoes in the bedroom where the gun was found and defendant’s apparent familiarity with the configuration of the gun’s ammunition and statement that "it’s mine" – is legally sufficient to establish defendant’s dominion and control over the area in which the handgun was found (see People v. Pointer, 206 A.D.3d 1232, 1233, 170 N.Y.S.3d 310 [3d Dept. 2022], lv denied 38 N.Y.3d 1152, 174 N.Y.S.3d 47, 194 N.E.3d 754 [2022]; People v. Bryant, 200 A.D.3d at 1487, 161 N.Y.S.3d 399; People v. Bellamy, 118 A.D.3d 1113, 1114, 987 N.Y.S.2d 666 [3d Dept. 2014], lv denied 25 N.Y.3d 1159, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015]). Further, although a contrary verdict would not have been unreasonable, when viewing the evidence in a neutral light, the verdict is not against the weight of the evidence (see People v. Sloley, 179 A.D.3d 1308, 1310, 117 N.Y.S.3d 373 [3d Dept. 2020], lv denied 35 N.Y.3d 974, 125 N.Y.S.3d 38, 148 N.E.3d 502 [2020]; People v. McCoy, 169 A.D.3d 1260, 1264, 95 N.Y.S.3d 441 [3d Dept. 2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019]).

[4–7] Next, defendant contends that Supreme Court erred in denying his motion to suppress evidence obtained during the; execution of the search warrant because said warrant was not supported by probable cause. "A search warrant approved by a magistrate is presumed valid and will be upheld if the warrant application demonstrates that there was sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place" (People v. Schaefer, 163 A.D.3d 1179, 1180, 82 N.Y.S.3d 197 [3d Dept. 2018] [internal quotation marks and citations omitted], lv denied 32 N.Y.3d 1007, 86 N.Y.S.3d 766, 111 N.E.3d 1122 [2018]; see People v. Jackson, 206 A.D.3d 1244, 1245–1246, 169 N.Y.S.3d 747 [3d Dept. 2022], lv denied 38 N.Y.3d 1151, 174 N.Y.S.3d 45, 194 N.E.3d 752 [2022]). "[T]he issuing court’s determination that probable cause existed must be afforded great deference" (People v. Ferguson, 136 A.D.3d 1070, 1072, 24 N.Y.S.3d 442 [3d Dept. 2016] [internal quotation marks, brackets and citations omitted]). Here, the supporting affidavit of a detective from the City of Albany Police Department detailed the surveillance operations conducted in the summer of 2019. The detective explained that he was familiar with defendant, who had several pending criminal charges relating to the possession or sale of marihuana. The affidavit also set forth the observations of defendant leaving the Hamilton Street residence in the early morning hours, the circumstances leading to defendant’s arrest and the large quantity of individually-packaged marihuana baggies. The detective asserted that, based upon his extensive experience investigating hundreds of narcotic crimes, he believed that defendant was involved in the sale of marihuana and that he was using the Hamilton Street residence to store marihuana and the proceeds from such sales. Having reviewed the search warrant application, we find that it provided sufficient information to support a reasonable belief that evidence of a crime may be found at the Hamilton Street residence (see People v. Morehouse, 183 A.D.3d 1180, 1182–1183, 124 N.Y.S.3d 741 [3d Dept. 2020], lv de- nied 35 N.Y.3d 1068, 129 N.Y.S.3d 386, 152 N.E.3d 1187 [2020]; People v. Brown, 167 A.D.3d 1331, 1332–1333, 90 N.Y.S.3d 380 [3d Dept. 2018]; see also People v. Merritt, 218 A.D.3d 1058, 1059–1060, 194 N.Y.S.3d 183 [3d Dept. 2023], lv denied 40 N.Y.3d 1093, 204 N.Y.S.3d 795, 228 N.E.3d 608 [2024]). We also reject defendant’s related contention that the search warrant application was deficient due to a typographical error within the supporting affidavit, as "search warrant applications should not be read in...