People v. Watts

2023 NY Slip Op 02144

The People of the State of New York, Respondent, v. Lydell D. Watts, Appellant.

Nos. 111631, 113137

Supreme Court of New York, Third Department

April 27, 2023

Calendar Date:February 15, 2023

Paul J. Connolly, Delmar, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Zachary S. Persichini of counsel), for respondent.

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

Clark J.

Appeals (1) from a judgment of the County Court of Chemung County (Richard W. Rich Jr., J.), rendered April 24, 2019, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree, and (2) by permission, from an order of said court, entered July 23 2021, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

Defendant was charged by indictment with the crime of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) in connection with an incident that occurred on September 1, 2018 in the City of Elmira, Chemung County. That incident led to the arrest of three individuals: defendant the codefendant (see People v Colter, 206 A.D.3d 1371 [3d Dept 2022], lv denied 38 N.Y.3d 1149 [2022]) and an adolescent offender (hereinafter the AO). Following a jury trial where defendant and the codefendant were tried jointly, defendant was found guilty as charged. Thereafter, defendant was sentenced, as a second felony offender, to a prison term of 10 years followed by five years of postrelease supervision. Defendant then moved pursuant to CPL 440.10 to vacate the judgment of conviction, claiming, as relevant here, that defense counsel was ineffective because he failed to file a timely motion for a Mapp/Dunaway hearing and because he did not call the AO as a witness at trial. The People opposed, and County Court denied the motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, from the order denying his CPL article 440 motion.

On appeal, defendant argues that the verdict is not supported by legally sufficient evidence and that it is against the weight of the evidence. "When assessing the legal sufficiency of a jury verdict, we view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" (People v Harris, 203 A.D.3d 1320, 1321 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 1033 [2022]; see People v Santiago, 206 A.D.3d 1466, 1467 [3d Dept 2022]). In turn, 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, 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 Barzee, 190 A.D.3d 1016, 1017-1018 [3d Dept 2021] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1094 [2021]; see People v Martinez, 166 A.D.3d 1292, 1293 [3d Dept 2018], lv denied 32 N.Y.3d 1207 [2019]).

As relevant here, "[a] person is guilty of criminal possession of a weapon in the second degree when... such person possesses any loaded firearm" outside of their home or place of business (Penal Law § 265.03 [3]). A "[l]oaded firearm" is defined as "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 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 [3d Dept 2021] [internal quotation marks, brackets, and citations omitted], appeal dismissed 38 N.Y.3d 1158 [2022]; see People v Ruffin, 191 A.D.3d 1174, 1176 [3d Dept 2021], lv denied 37 N.Y.3d 960 [2021]). "[C]onstructive 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 Jemmott, 164 A.D.3d 953, 956 [3d Dept 2018], lv denied 32 N.Y.3d 1112 [2018]; see People v Bryant, 200 A.D.3d at 1486). Further, subject to exceptions not applicable here, the presence of a firearm in an automobile is "presumptive evidence of its possession by all persons occupying such automobile at the time such weapon... is found" (Penal Law § 265.15 [3]; accord People v Kalabakas, 183 A.D.3d 1133, 1140 [3d Dept 2020], lv denied 35 N.Y.3d 1067 [2020]; People v Rawlinson, 170 A.D.3d 1425, 1426-1427 [3d Dept 2019], lv denied 33 N.Y.3d 1107 [2019]).

A Chemung County Sheriff's office deputy sheriff testified that, on the evening of September 1, 2018, he observed a blue Ford Explorer make a right-hand turn at a high rate of speed. Around the same time, he heard about an incident that took place at a nearby bar. The deputy stated that he saw four silhouettes inside the vehicle and that he began following it while awaiting a description of the vehicle and individuals involved in the incident. After the vehicle dropped off one person, he continued to follow and observed three silhouettes remained in the vehicle. Soon after, the vehicle pulled into a parking lot and, as the deputy received a description of the vehicle and the subjects involved in the incident, he noticed that the vehicle's occupants had exited the vehicle. While the deputy admitted that he did not see the subjects exit the vehicle, he noted that the vehicle and two of the subjects, a very tall male and a short male, matched the descriptions he had just received. Consequently, the deputy approached defendant, a very tall male who was walking away from the vehicle in the deputy's direction, and asked him to return to the vehicle. The deputy also asked the other two occupants, the codefendant and the AO, both of whom were walking away from the vehicle in the opposite direction, to return to the vehicle. The deputy then saw that the codefendant veered around a tan sedan parked four parking spots away and made a slight throwing motion, after which the deputy heard a metal object hit the ground. After backup arrived, the deputy handcuffed the three subjects and retrieved an empty Sig Sauer magazine from under the tan sedan.

Two officers from the Elmira Police Department testified that they searched the vehicle and noticed that the front passenger seat was positioned all the way back; they also observed that defendant was approximately 6 feet 6 inches tall. The first officer testified that he searched a gray duffel bag and a black-and-blue backpack located in the backseat of the vehicle. From the duffel bag, he recovered a fully loaded Sig Sauer 9 millimeter magazine; in the backpack, he found a Sig Sauer holster and a school identification card belonging to the AO. The second officer retrieved a Sig Sauer handgun from under the front passenger seat and a left-handed black-and-red work glove from that seat; the glove matched a right-handed black-and-red work glove that he had seen in defendant's right hoodie pocket. An investigator from the Elmira Police Department testified that he test-fired the handgun using the ammunition from the loaded magazine, and that the firearm was operable. Neither defendant nor the codefendant testified.

Defendant contends that his conviction is not supported by legally sufficient evidence because no one witnessed him inside the vehicle, so the automobile presumption was not applicable. While the deputy did not see defendant inside the vehicle or exit the vehicle, he did observe three silhouettes inside the vehicle. After looking away briefly, he saw only three people in the parking lot where the vehicle parked just moments before - defendant, the codefendant and the AO. Further, defendant's possession of a glove matching a glove found in the front passenger seat, as well as that seat's position, allowed the jury to infer that defendant, who is very tall, occupied that seat moments before. These facts permitted the jury to conclude that defendant had dominion and control over the firearm, which was located underneath his seat, and the ammunition, which was located in a duffel bag behind his seat, such that he constructively possessed them - including through the automobile presumption. Further, the firearm and the ammunition were both test-fired and found to be operable. Viewing the evidence in the light most favorable to the People, the conviction is supported by legally sufficient evidence (see People v Sostre, 172 A.D.3d 1623, 1625-1626 [3d Dept 2019], lv denied 34 N.Y.3d 938 [2019]; People v Ware, 28 A.D.3d 1124, 1125 [4th Dept 2006], lv denied 7 N.Y.3d 852 [2006]).

As to defendant's argument that the verdict is against the weight of the evidence, a different outcome would not have been unreasonable. No witnesses placed defendant in the vehicle, and the jury could have rejected the theory that defendant constructively possessed the firearm and the ammunition. However, deferring to the jury's credibility determinations, as we must, the proof showed that defendant was present in the vehicle shortly before the discovery of the firearm and the loaded magazine and that the firearm matched the loaded magazine, as well as the empty magazine. While the jury could have rejected the People's theory of ...