                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 23, 2016                      106592
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

EVAN R. LaDUKE,
                    Appellant.
________________________________


Calendar Date:    April 21, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                              __________


     Richard V. Manning, Parishville, for appellant.

      Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G.
Blatchely of counsel), for respondent.

                              __________


Lynch, J.

      Appeal from a judgment of the County Court of Clinton
County (McGill, J.), rendered January 21, 2014, upon a verdict
convicting defendant of the crimes of criminal possession of a
weapon in the second degree and criminal possession of a weapon
in the fourth degree.

      Jacob LaDuke, defendant's brother, was arrested for gun-
related crimes in the early morning hours of March 14, 2013.
Later that morning, police staked out the apartment where
defendant and LaDuke resided. After defendant carried a black
duffel bag from the apartment and placed it in his vehicle, he
was apprehended. As relevant to defendant's charges, a search
revealed that the duffel bag contained a loaded Glock 17 pistol
and his vehicle contained a set of metal knuckles. During his
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ensuing police interview, defendant maintained that the pistol
belonged to LaDuke and that, upon learning that LaDuke had been
arrested, he attempted to bring the pistol to the police station
and surrender it. Following a jury trial, defendant was
convicted of criminal possession of a weapon in the second degree
and criminal possession of a weapon in the fourth degree.
Defendant appeals.

      We affirm. Initially, we disagree with defendant that his
conviction for criminal possession of a weapon in the second
degree was against the weight of the evidence. As relevant to
the challenged conviction, a person is guilty of criminal
possession of a weapon in the second degree when "such person
possesses any loaded firearm" outside of his or her home or place
of business (Penal Law § 265.03 [3]; see Penal Law § 265.00 [3]
[a]; People v Oliver, 135 AD3d 1188, 1190 [2016], lv denied 27
NY3d 1003 [2016]). "In some circumstances, however, despite
possessing a proscribed weapon, a person may not be guilty due to
'the innocent nature of the possession'" (People v Curry, 85 AD3d
1209, 1211 [2011], lv denied 17 NY3d 815 [2011], quoting People v
Almodovar, 62 NY2d 126, 130 [1984]), and the affirmative defense
of "[t]emporary and lawful possession may be established where
there is 'a legal excuse for having the weapon'" (People v Curry,
85 AD3d at 1211, quoting People v Williams, 50 NY2d 1043, 1045
[1980]; see People v Alls, 117 AD3d 1190, 1191-1192 [2014]).
Defendant does not take issue with the proof presented to show
that the pistol was loaded and operable which, in any case, is
amply supported by the record. Defendant rather contends that
there is a lack of credible evidence to establish that his
possession of the pistol was not temporary and innocent.

      A different verdict would not have been unreasonable given
defendant's trial testimony and, thus, we must "weigh the
relative probative force of conflicting testimony and the
relative strength of conflicting inferences that may be drawn
from the testimony" (People v Novick, 126 AD3d 1134, 1134 [2015]
[internal quotation marks and citations omitted], lv denied 25
NY3d 1075 [2015]; accord People v Fournier, 137 AD3d 1318, 1319
[2016]). Dean Shedd testified that, in early March 2013, he sold
a Glock 17 pistol to defendant in Vermont. Shedd testified that
defendant identified himself as Sam Connors during their
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interactions and an envelope addressed to Sam Connors was found
in defendant's vehicle. Also on March 3, 2013, defendant's
vehicle made a round trip to Vermont and phone records
established that Shedd corresponded with defendant's phone via
text messages. With respect to the event precipitating LaDuke's
arrest, Nicholas Mackiewicz testified that, on March 14, 2013,
LaDuke and defendant threatened him while brandishing weapons.
LaDuke was pulled over on Oak Street, near Mackiewicz's
residence, and arrested. Although defendant was not arrested
until later that day, police stopped defendant's vehicle on the
same street around the time of LaDuke's arrest. At trial, LaDuke
corroborated parts of Mackiewicz's account and testified that
defendant owned the pistol. Although LaDuke's mother testified
to his untruthfulness and both LaDuke and Mackiewicz admitted
that they were under the influence of drugs during the events to
which they testified, granting deference to the jury's
credibility determinations, the jury's verdict convicting
defendant of criminal possession of a weapon in the second degree
was not against the weight of the evidence (see People v Alls,
117 AD3d at 1192; People v Curry, 85 AD3d at 1211; People v
Vargas, 60 AD3d 1236, 1238-1239 [2009], lv denied 13 NY3d 750
[2009]; People v Myers, 265 AD2d 598, 600 [1999]).

      We are unpersuaded by defendant's further contention that
he was deprived of a fair trial based on County Court's alleged
errors. Initially we find unpreserved defendant's assertion that
the court violated the general rule governing the admissibility
of scientific evidence formulated in Frye v United States (293 F
1013 [1923]) by allowing evidence obtained from a license plate
reader without a showing of general acceptance in the scientific
community, inasmuch as he failed to object to the evidence on
this ground (see CPL 470.05 [2]; People v Gallup, 302 AD2d 681,
684 [2003], lv denied 100 NY2d 594 [2003]). In any event, as the
investigator made the actual matches by analyzing a photograph of
defendant's license plate, there was no Frye violation (see
People v Burnell, 89 AD3d 1118, 1121-1122 [2011], lv denied 18
NY3d 922 [2012]).

      Nor did County Court err in handling two jury notes. CPL
310.30 "'imposes two separate duties on the court following a
substantive juror inquiry: the duty to notify counsel and the
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duty to respond'" (People v Alcide, 21 NY3d 687, 691-692 [2013],
quoting People v O'Rama, 78 NY2d 270, 276 [1991]). However,
where, as here, "defense counsel had notice of the contents of
the note and the court's [intended] response, and failed to
object at that time," there is no mode of proceedings error and
the claim is unpreserved for our review (People v Ramirez, 15
NY3d 824, 826 [2010]; see People v Alcide, 21 NY3d at 694). That
said, in the first note, the jury listed five specific requests
for the readback of testimony and the record confirms that the
court reporter proceeded with the readback at the court's
direction and without objection (see CPL 310.30; People v Kahley,
105 AD3d 1322, 1323-1325 [2013]). As to the second note, the
court properly reread the instructions on criminal possession of
a weapon in the second degree, including the instruction on
temporary lawful possession, in response to the jury's request
for clarification – again without objection. Although the record
does not expressly indicate whether defendant was present when
the court notified counsel and responded to the jury's requests,
the absence of a notation that defendant was present is
insufficient to establish his absence (see People v Pittman, 109
AD3d 1080, 1082 [2013], lv denied 22 NY3d 1043 [2013]). Finally,
we find no mode of proceedings error when the court did not
admonish the jury with the exact language of CPL 270.40 before a
recess in deliberations, because the court's admonishments,
throughout the trial, adequately conveyed to the jury its
function (see People v Williams, 46 AD3d 585, 585-586 [2007], lv
denied 10 NY3d 772 [2008]).

      We also find that defendant received the effective
assistance of counsel. During jury selection, County Court
stated that "[t]he grand jury is a group of citizens very similar
to you that . . . made a decision as to whether there is a
probability that this defendant committed the acts charged."
Defense counsel did not err in failing to object, because, when
considered as a whole, together with the court's instruction
immediately thereafter that the jury could not "consider the fact
that [defendant has] been indicted as any evidence of guilt" and
that the indictment "has no bearing on whether [defendant is]
guilty or not," the instruction was not likely to confuse the
jury as to its role and the proper burden of proof at trial (see
CPL 70.10 [2]; 190.65 [1]; People v Fields, 87 NY2d 821, 823
                              -5-                106592

[1995]). Likewise, although it was improper for the prosecutor
to question prospective jurors about their attitudes towards the
laws of New York pertaining to pistol permits (see People v
Boulware, 29 NY2d 135, 141 [1971], cert denied 405 US 995 [1972];
People v Addison, 94 AD3d 1539, 1540 [2012], lv denied 19 NY3d
994 [2012]), defendant has failed to show the absence of a
strategic reason for counsel's failure to object, and the
comments were not so prejudicial as to support a finding of
ineffective assistance of counsel (see People v Benevento, 91
NY2d 708, 712-713 [1998]; People v Albanese, 38 AD3d 1015, 1019
[2007], lv denied 8 NY3d 981 [2007]).

      Further, although defense counsel failed to object to the
People's improper bolstering of Shedd's testimony identifying
defendant as the buyer of the pistol, such failure did not
constitute the ineffective assistance of counsel. It is well
settled that "testimony regarding pretrial out-of-court
photographic identification . . . constitutes improper bolstering
of trial testimony and is prohibited, except where defendant
opens the door" (People v Allah, 57 AD3d 1115, 1118 [2008], lv
denied 12 NY3d 780 [2009]; see People v Lindsay, 42 NY2d 9, 12
[1977]; People v Rivera, 31 AD3d 1060, 1061 [2006], lv denied 7
NY3d 869 [2006]). Here, defense counsel opened the door during
his opening statement by describing defendant and LaDuke as
"basically mirror images of each other." Therefore, it was
proper for the People to submit evidence that Shedd identified
defendant in a photo array and that, when given a separate photo
array containing LaDuke's picture, he did not recognize any
photographs (see People v Allah, 57 AD3d at 1118; People v
Heckstall, 45 AD3d 907, 909 [2007], lv denied 10 NY3d 766 [2008];
People v Rivera, 31 AD3d at 1061; People v Sanders, 224 AD2d 556,
556-557 [1996], lv denied 88 NY2d 941 [1996]). Also, as defense
counsel referred to the photo arrays in his closing argument, we
cannot say that there was no strategic or legitimate reason for
opening the door (see People v Benevento, 91 NY2d at 712-713;
People v Allah, 57 AD3d at 1118).

      However, although the door had been opened to evidence that
Shedd did not confuse defendant with LaDuke, it was improper
bolstering for the People to submit the testimony of three
witnesses describing Shedd's photo array identification. While
                              -6-                106592

it was proper for the People to lay a foundation regarding the
photo array evidence through the testimony of two police officers
(see People v Ennis, 41 AD3d 271, 274 [2007], affd 11 NY3d 403
[2008], cert denied 556 US 1240 [2009]), it was improper
bolstering to confirm Shedd's identification of defendant with
their testimony (see People v McCullen, 63 AD3d 1708, 1709
[2009], lv denied 13 NY3d 747 [2009]). However, given Shedd's
unequivocal identification of defendant and the overwhelming
evidence establishing that defendant's possession of the pistol
was neither temporary or innocent, any error was harmless (see
People v Allah, 57 AD3d at 1118; People v Rivera, 31 AD3d at
1061).

      Defendant was not denied the effective assistance of
counsel when defense counsel failed to move for a trial order of
dismissal on the ground that there was legally sufficient
evidence to support his convictions (see People v Caban, 5 NY3d
143, 154-155 [2005]; People v Tolliver, 93 AD3d 1150, 1151
[2012], lv denied 19 NY3d 968 [2012]). We also find that
defendant failed to demonstrate the lack of strategic explanation
for defense counsel's decision not to publish to the jury a video
of defendant's police interview or in not objecting to a jury
charge regarding the voluntariness of defendant's statement,
especially given the numerous inconsistencies and contradictions
made by defendant during the interview (see People v Benevento,
91 NY2d at 712-713; People v Wheeler, 124 AD3d 1136, 1138-1139
[2015], lv denied 25 NY3d 993 [2015]). Further, to the extent
that defense counsel should have objected to the submission of
certain evidence or to certain comments during the prosecutor's
opening and closing statements, we find that, viewing the record
as a whole, defense counsel "pursued a consistent, cogent theory
of defense" and otherwise provided defendant with the effective
assistance of counsel (People v Clarke, 110 AD3d 1341, 1346
[2013], lv denied 22 NY3d 1197 [2014]; see People v Lapi, 105
AD3d 1084, 1086-1088 [2013], lv denied 21 NY3d 1043 [2013]).
Defendant's remaining contentions have been examined and found to
be without merit.

     McCarthy, J.P., Egan Jr., Devine and Mulvey, JJ., concur.
                        -7-                  106592

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
