Opinion
957 KA 17–00050
11-08-2019
The PEOPLE of the State of New York, Respondent, v. Richard D. STEINMETZ, Defendant–appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (J. SCOTT PORTER OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, 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 following a jury trial of, inter alia, one count of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ), two counts of criminal possession of a weapon in the third degree related to his possession of two assault weapons (§ 265.02[7] ), and one count of criminal possession of marihuana in the second degree (§ 221.25). Contrary to defendant's contention, the evidence is legally sufficient to support the conviction of the two counts of criminal possession of a weapon in the third degree related to his possession of assault weapons. Although no witness testified that the two semi-automatic rifles at issue had the ability to accept a detachable magazine and also had at least one of the characteristics listed in Penal Law § 265.00(22)(a), the rifles and photographs of the rifles were admitted in evidence, thereby establishing that the rifles met the statutory definition of an assault weapon (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Contrary to defendant's further contention regarding the sufficiency of the evidence supporting those two counts, the People were not required to establish that defendant knew the rifles met the statutory criteria of an assault weapon but, rather, only that he knowingly possessed the rifles (see generally People v. Parrilla , 27 N.Y.3d 400, 404–405, 33 N.Y.S.3d 842, 53 N.E.3d 719 [2016] ).
Defendant contends that the search warrant that provided the basis for the search of his residence was not issued upon probable cause. We reject that contention. Having reviewed the transcript from the Darden hearing, we conclude that "the confidential informant's basis of knowledge was sufficiently established at the in camera [People v. ] Darden [34 N.Y.2d 177, 356 N.Y.S.2d 582, 313 N.E.2d 49 (1974) ] hearing" ( People v. Mitchum , 130 A.D.3d 1466, 1468, 12 N.Y.S.3d 749 [4th Dept. 2015] ) inasmuch as "the information from the informant, in its totality, ‘provided ample basis to conclude that the informant had a basis for his or her knowledge that defendant was in possession of’ [drugs]" ( People v. Knight , 94 A.D.3d 1527, 1529, 943 N.Y.S.2d 355 [4th Dept. 2012], lv denied 19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920 [2012], quoting People v. Lowe , 50 A.D.3d 516, 516, 856 N.Y.S.2d 90 [1st Dept. 2008], affd 12 N.Y.3d 768, 879 N.Y.S.2d 25, 906 N.E.2d 1057 [2009] ). We further conclude that the testimony at the Darden hearing established that "the hearsay information supplied in the search warrant application satisfied the two prongs of the Aguilar–Spinelli test and that the search warrant was issued upon probable cause" ( Mitchum , 130 A.D.3d at 1468, 12 N.Y.S.3d 749 ).
Defendant contends that he was denied a fair trial when Supreme Court permitted the People to introduce evidence of prior bad acts, as well as evidence that defendant invoked his right to counsel and evidence that law enforcement officers were looking for both guns and drugs even though the search warrant made no reference to weapons. Inasmuch as defendant made no objection to the testimony regarding the invocation of the right to counsel or the expanded scope of the officers' search, his contentions related thereto are not preserved for our review (see People v. Vrooman , 115 A.D.3d 1189, 1190, 982 N.Y.S.2d 248 [4th Dept. 2014], lv denied 23 N.Y.3d 969, 988 N.Y.S.2d 576, 11 N.E.3d 726 [2014] ; see generally People v. Howard , 167 A.D.3d 1499, 1501, 90 N.Y.S.3d 427 [4th Dept. 2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 232, 122 N.E.3d 1145 [2019] ). In any event, we conclude that, even if we were to exercise our power to address the unpreserved contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), reversal would not be required.
Contrary to defendant's contention, the alleged evidence of prior bad acts, which consisted of, inter alia, evidence that an inoperable gun, a scale and a large quantity of cash were also found in the house during the search, was admissible inasmuch as such evidence completed the narrative of events and explained the actions of the officers as they searched the residence (see People v. Brown , 277 A.D.2d 974, 974, 716 N.Y.S.2d 504 [4th Dept. 2000], lv denied 96 N.Y.2d 756, 725 N.Y.S.2d 282, 748 N.E.2d 1078 [2001] ; see also People v. Casado , 99 A.D.3d 1208, 1211, 951 N.Y.S.2d 797 [4th Dept. 2012], lv denied 20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620 [2012] ). Although the People contend that such evidence did not constitute Molineux evidence inasmuch as possession of those items is not illegal or unlawful (see People v. Thomas , 26 A.D.3d 188, 188, 808 N.Y.S.2d 680 [1st Dept. 2006], lv denied 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1289 [2006] ; People v. Hucks , 292 A.D.2d 833, 833, 738 N.Y.S.2d 792 [4th Dept. 2002], lv denied 98 N.Y.2d 697, 747 N.Y.S.2d 416, 776 N.E.2d 5 [2002] ; Brown , 277 A.D.2d at 974, 716 N.Y.S.2d 504 ), that contention was not raised at trial and, therefore, is not preserved for our review (see generally People v. Jones , 85 N.Y.2d 998, 999, 630 N.Y.S.2d 961, 654 N.E.2d 1209 [1995] ).
Even assuming, arguendo, that the admission of some of the challenged evidence was improper (see People v. Daniels , 115 A.D.3d 1364, 1365, 982 N.Y.S.2d 689 [4th Dept. 2014], lv denied 23 N.Y.3d 1019, 992 N.Y.S.2d 802, 16 N.E.3d 1282 [2014] ), any error is harmless. The evidence of defendant's guilt is overwhelming (see generally People v. Crimmins , 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ) and "there is no significant probability that the jury would have acquitted defendant if the allegedly improper Molineux evidence had been excluded" ( Casado , 99 A.D.3d at 1212, 951 N.Y.S.2d 797 ). Moreover, there is no reasonable possibility that the error regarding defendant's invocation of the right to counsel might have contributed to his conviction (see Vrooman , 115 A.D.3d at 1190, 982 N.Y.S.2d 248 ; Daniels , 115 A.D.3d at 1365, 982 N.Y.S.2d 689 ).
With respect to the sentence, we conclude that defendant's contention that he was penalized for asserting his right to trial is not preserved for our review (see People v. Huddleston , 160 A.D.3d 1359, 1362, 76 N.Y.S.3d 294 [4th Dept. 2018], lv denied 31 N.Y.3d 1149, 83 N.Y.S.3d 430, 108 N.E.3d 504 [2018] ) and, in any event, lacks merit (see People v. Garner , 136 A.D.3d 1374, 1374–1375, 25 N.Y.S.3d 758 [4th Dept. 2016], lv denied 27 N.Y.3d 997, 38 N.Y.S.3d 107, 59 N.E.3d 1219 [2016] ). The sentence imposed is not unduly harsh or severe.