Opinion
2019–06265 Ind. No. 7181/16
12-20-2023
The PEOPLE, etc., respondent, v. Mark BELIZAIRE, appellant.
Patricia Pazner, New York, NY (David Fitzmaurice and Weil, Gotshal & Manges LLP [Gregory Silbert, Joshua Halpern, Shai Berman, and Megan McKinley ], of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Ann Bordley of counsel), for respondent.
Patricia Pazner, New York, NY (David Fitzmaurice and Weil, Gotshal & Manges LLP [Gregory Silbert, Joshua Halpern, Shai Berman, and Megan McKinley ], of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Ann Bordley of counsel), for respondent.
MARK C. DILLON, J.P., BETSY BARROS, PAUL WOOTEN, HELEN VOUTSINAS, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Laura R. Johnson, J.), rendered April 24, 2019, as amended April 26, 2019, convicting him of criminal possession of a weapon in the second degree, criminal possession of forgery devices, and criminal possession of a forged instrument in the third degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing (Shawndya L. Simpson, J.), of that branch of the defendant's omnibus motion which was to controvert a search warrant.
ORDERED that the judgment, as amended, is affirmed.
After the issuance of a search warrant based upon information from a police officer and an eyewitness, the police recovered a loaded firearm, a credit card scanner, a credit card embosser, and several credit cards from the defendant's apartment.
The defendant moved, inter alia, to controvert the search warrant, and the Supreme Court denied that branch of the defendant's omnibus motion. After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree, criminal possession of forgery devices, and three counts of criminal possession of a forged instrument in the third degree. The defendant appeals.
As an initial matter, contrary to the People's contention, the defendant's contention that the search warrant was not supported by probable cause is preserved for appellate review. The defendant raised a challenge to the police officer's credibility in connection with that branch of his motion which was to suppress. The crux of the defendant's argument here is based on the police officer's credibility. Therefore, the issue is preserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Rivera, 210 A.D.3d 805, 806, 178 N.Y.S.3d 169 ). However, contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to controvert the search warrant. The search warrant application, in combination with the testimony at the search warrant application hearing, contained sufficient factual allegations of criminal conduct to justify issuance of the search warrant (see People v. Abad, 208 A.D.3d 892, 893–894, 173 N.Y.S.3d 350 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of three counts of criminal possession of a forged instrument in the third degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those counts was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that Penal Law § 265.03(3) is unconstitutional in light of the decision in New York State Rifle & Pistol Assn., Inc. v. Bruen , 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387, is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the Supreme Court (see People v. Cabrera, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2023 N.Y. Slip Op. 05968 ; People v. Manners, 217 A.D.3d 683, 191 N.Y.S.3d 90 ; see also People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408, 813 N.Y.S.2d 27, 846 N.E.2d 457 ; People v. Crum, 184 A.D.3d 454, 455, 126 N.Y.S.3d 7 ). In any event, the defendant's contention is without merit, because the ruling in Bruen had no impact on the constitutionality of New York State's criminal possession of a weapon statutes (see People v. Joyce, 219 A.D.3d 627, 628, 194 N.Y.S.3d 303 ; People v. Bryant, 219 A.D.3d 622, 624, 195 N.Y.S.3d 43 ; People v. Manners, 217A.D.3d at 686, 191 N.Y.S.3d 90 ).
The parties’ remaining contentions are without merit.
DILLON, J.P., BARROS, WOOTEN and VOUTSINAS, JJ., concur.