Opinion
982 KA 22-01018
02-10-2023
The PEOPLE of the State of New York, Respondent, v. Jason BRITTON, Defendant-Appellant.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
KEEM APPEALS, PLLC, SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [2] ), criminal possession of marihuana in the third degree (former § 221.20), and two counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1], [12]). We affirm.
Defendant contends that he was deprived of a fair trial by the admission of certain evidence at trial, including a photograph depicting the weapons at issue with other weapons that defendant legally possessed and certain evidence seized from trash that he had placed outside his house. By stipulating to the admissibility of the photograph, defendant waived his present contention that it should not have been admitted in evidence (see People v. Hutchings , 142 A.D.3d 1292, 1294, 38 N.Y.S.3d 863 [4th Dept. 2016], lv denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016] ; People v. Santos-Sosa , 233 A.D.2d 833, 833, 649 N.Y.S.2d 622 [4th Dept. 1996], lv denied 89 N.Y.2d 988, 656 N.Y.S.2d 747, 678 N.E.2d 1363 [1997] ). In any event, "photographs are admissible if they tend ‘to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.’ They should be excluded ‘only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant’ " ( People v. Wood , 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178 [1992], quoting People v. Pobliner , 32 N.Y.2d 356, 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637 [1973], rearg denied 33 N.Y.2d 657, 348 N.Y.S.2d 1030, 303 N.E.2d 710 [1973], cert denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110 [1974] ). Here, we conclude that the photograph was relevant to a material issue in the case and its sole purpose was not to arouse the emotions of the jury (see People v. Walton , 178 A.D.3d 1459, 1459-1460, 112 N.Y.S.3d 640 [4th Dept. 2019], lv denied 35 N.Y.3d 1030, 126 N.Y.S.3d 25, 149 N.E.3d 863 [2020] ; People v. Boop , 118 A.D.3d 1273, 1274, 987 N.Y.S.2d 527 [4th Dept. 2014], lv denied 24 N.Y.3d 1082, 1 N.Y.S.3d 9, 25 N.E.3d 346 [2014] ).
With respect to defendant's contention concerning the evidence recovered from his trash can nine days prior to his arrest, which included five sandwich bags containing cocaine residue, we conclude that evidence of his prior possession of the drug residue was admissible to establish his intent to sell drugs, which is a necessary element of one of the controlled substance charges (see People v. Laws , 27 A.D.3d 1116, 1117, 812 N.Y.S.2d 200 [4th Dept. 2006], lv denied 7 N.Y.3d 758, 819 N.Y.S.2d 883, 853 N.E.2d 254 [2006] ), and the probative value of the evidence outweighed its prejudicial effect (see generally People v. Whitfield , 115 A.D.3d 1181, 1182, 982 N.Y.S.2d 242 [4th Dept. 2014], lv denied 23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513 [2014] ).
We reject defendant's contention that County Court erred in declining to suppress the results of a fingerprint comparison in which a police officer used a fingerprint card that, as the People correctly concede, should have been sealed pursuant to CPL 160.50. That statute "was not designed to immunize a defendant from the operations of [a] law enforcement official's investigatory use of fingerprints" ( People v. Pate , 182 A.D.2d 717, 718, 582 N.Y.S.2d 448 [2d Dept. 1992], lv denied 80 N.Y.2d 836, 587 N.Y.S.2d 920, 600 N.E.2d 647 [1992] ; see generally People v. Patterson , 78 N.Y.2d 711, 717-718, 579 N.Y.S.2d 617, 587 N.E.2d 255 [1991] ).
Defendant contends that the court deprived him of the ability to present a defense based on Penal Law § 265.20 (a) (3), which exempts the possession of certain weapons from a number of weapons charges, including criminal possession of a weapon in the second degree under section 265.03. Although defendant inquired regarding the defense, we conclude that "defendant failed to provide the court with an adequate factual basis for his proposed" defense ( People v. Breheny , 270 A.D.2d 926, 927, 705 N.Y.S.2d 160 [4th Dept. 2000], lv denied 95 N.Y.2d 851, 714 N.Y.S.2d 2, 736 N.E.2d 863 [2000] ). "[O]ffers of proof must be made clearly and unambiguously" ( People v. Williams , 6 N.Y.2d 18, 23, 187 N.Y.S.2d 750, 159 N.E.2d 549 [1959], cert denied 361 U.S. 920, 80 S.Ct. 266, 4 L.Ed.2d 188 [1959], rearg denied 10 N.Y.2d 1011, 224 N.Y.S.2d 1025, 180 N.E.2d 272 [1961] ; see Breheny , 270 A.D.2d at 927, 705 N.Y.S.2d 160 ), and inasmuch as defendant failed to make an offer of proof demonstrating that the proposed affirmative defense applied in this case (see generally People v. Santana , 7 N.Y.3d 234, 236-237, 818 N.Y.S.2d 842, 851 N.E.2d 1193 [2006] ; People v. Hazzard , 129 A.D.3d 1598, 1600, 12 N.Y.S.3d 415 [4th Dept. 2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 604, 40 N.E.3d 582 [2015] ; People v. Procanick , 68 A.D.3d 1756, 1756, 890 N.Y.S.2d 868 [4th Dept. 2009], lv denied 14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571 [2010] ), defendant's contention is not preserved for our review (see generally People v. Schafer , 81 A.D.3d 1361, 1363, 916 N.Y.S.2d 414 [4th Dept. 2011], lv denied 17 N.Y.3d 861, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] ).
Defendant further contends that the conviction is not supported by legally sufficient evidence and that the verdict is contrary to the weight of the evidence. Initially, we conclude that defendant failed to preserve his sufficiency challenge with respect to the conviction of criminal possession of a controlled substance in the third degree under count three of the indictment inasmuch as his motion for a trial order of dismissal with respect to that count was not " ‘specifically directed’ " at the error raised on appeal ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, we conclude that the evidence with respect to that count and the remaining charges upon which defendant was convicted, viewed in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Further, viewing the evidence in light of the elements of all of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally id. at 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant failed to preserve for our review his contention that, in sentencing him, the court penalized him for exercising the right to a jury trial, inasmuch as he failed to raise that contention at sentencing (see People v. Motzer , 96 A.D.3d 1635, 1636, 946 N.Y.S.2d 795 [4th Dept. 2012], lv denied 19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012] ). The sentence is not unduly harsh or severe.