        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1252
KA 13-02164
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MATTHEW ROACH, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MATTHEW ROACH, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered September 20, 2013. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the third degree and resisting arrest.

     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 third
degree ([CPW] Penal Law § 265.02 [1]) and resisting arrest (§ 205.30).
Defendant is convicted of possessing a machete during a dispute with a
man in defendant’s apartment. When the police arrived in response to
the man’s 911 call, they met the man outside and proceeded to
defendant’s apartment. Defendant refused to open the door in response
to their knock and announcement as police officers, and the police
entered the apartment after hearing a male voice making threats and a
female voice saying words to the effect of “stop it, put it down.”
After defendant refused to comply with police directives to show his
hands, the police used force to effect his arrest.

     We reject defendant’s contention in his main and pro se
supplemental briefs that Supreme Court erred in denying that part of
his motion to dismiss the indictment with respect to the count
charging CPW on the ground that the grand jury proceedings were
defective because the prosecutor failed to instruct the grand jury on
the defense of justification (see Penal Law § 35.15). Although
defendant testified before the grand jury that he possessed the
machete to protect himself and his girlfriend from the man at
defendant’s apartment, who had a board with nails in it, it is well
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                                                         KA 13-02164

established that, “[b]ecause the possession of a weapon is distinct
from the use of such weapon, ‘there are no circumstances when
justification . . . can be a defense to the crime of criminal
possession of a weapon’ ” (People v Cohens, 81 AD3d 1442, 1444, lv
denied 16 NY3d 894, quoting People v Pons, 68 NY2d 264, 267; see
People v Taylor, 140 AD3d 1738, 1740). Defendant failed to make a
pretrial motion to dismiss the count of the indictment charging him
with resisting arrest on the ground that the prosecutor failed to
instruct the grand jury on the defense of justification, and thus his
challenge to that count of the indictment is not preserved for our
review (see People v Fisher, 101 AD3d 1786, 1786, lv denied 20 NY3d
1098). In any event, that contention is without merit (see generally
§ 35.27).

     We reject defendant’s contention in his main brief that the
verdict is against the weight of the evidence based upon the lack of
credibility of the victim with respect to the conviction of CPW and
the lack of credibility of the police witnesses with respect to the
conviction of resisting arrest. Viewing the evidence in light of the
elements of the crimes as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we conclude that the verdict is not against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). Although a verdict of not guilty of CPW would not have been
unreasonable (see generally id.), we nevertheless decline to disturb
the credibility determinations of the jury (see People v Medley, 132
AD3d 1255, 1255, lv denied 26 NY3d 1110, reconsideration denied 27
NY3d 967; see generally Bleakley, 69 NY2d at 495). We likewise
decline to disturb the jury’s credibility determination regarding the
police witnesses (see Medley, 132 AD3d at 1255).

     We reject defendant’s further contention in his main brief that
he was denied a fair trial and the right to confront witnesses by the
court’s determination that an adjudication of the Citizens Review
Board (CRB) with respect to the police action in effecting defendant’s
arrest was not admissible. It is well settled that “[o]ut-of-court
statements offered for the truth of the matters they assert are
hearsay and may be received in evidence only if they fall within one
of the recognized exceptions to the hearsay rule, and then only if the
proponent demonstrates that the evidence is reliable” (People v
Meadow, 140 AD3d 1596, 1598, lv denied 28 NY3d 933, reconsideration
denied 28 NY3d 972 [internal quotation marks omitted]). Here, the
determination of the CRB did not fall within any of the recognized
exceptions to the hearsay rule. Although defendant asserted that he
wanted to use the determination to establish that the police witnesses
had a reason to fabricate their trial testimony, “[t]he right to
present a defense does not give criminal defendants carte blanche to
circumvent the rules of evidence . . . The courts therefore have the
discretion to exclude evidence sought to be introduced by a defendant
where such evidence is irrelevant or constitutes hearsay, and its
probative value is outweighed by the dangers of speculation,
confusion, and prejudice” (People v Williams, 94 AD3d 1555, 1556
[internal quotation marks omitted]). We note that defendant cross-
examined the officers with respect to their knowledge that a complaint
with the CRB had been lodged against them.
                                 -3-                          1252
                                                         KA 13-02164

     Defendant failed to preserve for our review his contention in his
main brief that the court erred in its charge to the jury on resisting
arrest because the court should not have instructed the jury regarding
Penal Law § 35.27 (see People v Spillman, 57 AD3d 580, 581, lv denied
12 NY3d 788, cert denied 558 US 1013). In any event, that contention
is without merit. Upon our review of the charge as a whole against
the background of the evidence at trial, we conclude that the charge
properly conveyed the People’s burden of proof with respect to the
count of resisting arrest and was not likely to confuse the jury on
the issue whether defendant could be convicted of resisting arrest if
the arrest was unauthorized (see id.; see generally People v Walker,
26 NY3d 170, 174-175). Defendant also failed to preserve for our
review his contention in his main brief that the court erred in
failing to instruct the jury that it must determine whether the
machete was a dangerous knife before it applied the statutory
presumption that “possession by any person of any . . . dangerous
knife . . . is presumptive evidence of intent to use the same
unlawfully against another” (§ 265.15 [4]). Nevertheless, that
contention also is without merit inasmuch as there is ample evidence
that defendant possessed the machete as a weapon (see generally Matter
of Antwaine T., 23 NY3d 512, 516-517), which provided support for the
court’s instruction that the machete was a “dangerous instrument” (see
generally People v Campos, 93 AD3d 581, 582, lv denied 19 NY3d 971).

     We have reviewed the remaining contentions in defendant’s pro se
supplemental brief and conclude that none requires reversal or
modification of the judgment.




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
