Opinion
404 KA 15-00426.
03-31-2017
The PEOPLE of the State of New York, Respondent, v. Kahlid A. KABIR, Defendant–Appellant.
Law Offices of Matthew J. Rich, P.C., Rochester (Matthew J. Rich of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Respondent.
Law Offices of Matthew J. Rich, P.C., Rochester (Matthew J. Rich of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
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[3] ). Defendant contends that Supreme Court erred in refusing to suppress the weapon because the police recovered it during the search of a home without a warrant. We agree with the court that, even assuming, arguendo, that defendant had standing to contest the warrantless search, the People established that the resident of the home voluntarily consented to the search (see People v. Nance, 132 A.D.3d 1389, 1389, 17 N.Y.S.3d 261, lv. denied 26 N.Y.3d 1091, 23 N.Y.S.3d 647, 44 N.E.3d 945 ; People v. McCray, 96 A.D.3d 1480, 1481, 946 N.Y.S.2d 744, lv. denied 19 N.Y.3d 1104, 955 N.Y.S.2d 559, 979 N.E.2d 820 ). In contending that the resident did not give consent, defendant improperly relies on testimony of the resident of the home at the first trial, which ended in a hung jury. " ‘[T]estimony subsequently elicited at trial may not be considered in connection with a challenge to a pretrial suppression determination’ " (People v. McCurty [Appeal No. 2], 60 A.D.3d 1406, 1407, 875 N.Y.S.2d 718, lv. denied 12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591 ; see People v. Cooper, 59 A.D.3d 1052, 1054, 872 N.Y.S.2d 793, lv. denied 12 N.Y.3d 852, 881 N.Y.S.2d 664, 909 N.E.2d 587 ).
We reject defendant's further contention that the evidence is legally insufficient to establish that defendant was in possession of the firearm, inasmuch as the evidence "established a particular set of circumstances from which a jury could infer possession" (People v. Boyd, 145 A.D.3d 1481, 1482, 43 N.Y.S.3d 641 [internal quotation marks omitted] ). An officer testified that, upon entering the home, he observed defendant standing upstairs, holding a handgun. Defendant retreated to a bedroom for a minute, and then came back out of the room without the gun. When officers searched the room, they found a gun concealed under clothing in a dresser drawer. Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime 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 ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant contends that he was deprived of effective assistance of counsel based on defense counsel's failure to call a witness, i.e., the resident of the house, who testified at the first trial that ended in a hung jury. That contention is based on matters outside the record on appeal and must be raised by a motion pursuant to CPL 440.10 (see People v. Streeter, 118 A.D.3d 1287, 1289, 987 N.Y.S.2d 775, lv. denied 23 N.Y.3d 1068, 994 N.Y.S.2d 327, 18 N.E.3d 1148, reconsideration denied 24 N.Y.3d 1047, 998 N.Y.S.2d 317, 23 N.E.3d 160 ; People v. Kaminski, 109 A.D.3d 1186, 1186, 971 N.Y.S.2d 721, lv. denied 22 N.Y.3d 1088, 981 N.Y.S.2d 674, 4 N.E.3d 976 ).
Defendant failed to preserve for our review his contention that the sentence was a vindictive punishment for proceeding to trial (see People v. Pope, 141 A.D.3d 1111, 1112, 33 N.Y.S.3d 812 ), and that contention is without merit in any event (see People v. Garner, 136 A.D.3d 1374, 1374–1375, 25 N.Y.S.3d 758, lv. denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 ). The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.