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

514
KA 14-00658
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EUGENE LAWRENCE, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MICHAEL
J. HILLERY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered February 28, 2014. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the order of protection in
favor of defendant’s wife and as modified the judgment is affirmed.

     Memorandum: On appeal 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 a gun discovered by a police officer during a
search of the residence he shared with his wife. Defendant sought
suppression of the gun on the ground that he did not voluntarily
consent to the search. Contrary to defendant’s contention, we
conclude that “the court did not err in determining, based upon the
totality of the circumstances, that [defendant] voluntarily consented
to the search of his residence” (People v May, 100 AD3d 1411, 1412, lv
denied 20 NY3d 1063). Here, the testimony of the police officer at
the suppression hearing established that defendant was not in custody
when he consented to the search, that the officer did not employ
threats or other coercive techniques, and that defendant was calm and
compliant throughout the interaction (see People v Caldwell, 221 AD2d
972, 972-973, lv denied 87 NY2d 920). “The testimony of defendant[ ]
. . . at the suppression hearing that [he] did not voluntarily consent
to the search raised an issue of credibility that the court was
entitled to resolve against defendant” (People v Mills, 137 AD3d 1690,
1691; see People v Harris, 132 AD3d 1281, 1283, lv denied 26 NY3d
1109). In light of our determination that defendant voluntarily
consented to the search, we reject his further contention that his
statements to the police must be suppressed as fruit of the poisonous
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tree (see People v Nichols, 113 AD3d 1122, 1123, lv denied 23 NY3d
1065).

     Defendant failed to preserve for our review his contention that
he was denied a fair trial based on the allegedly improper inquiry by
the prosecutor during jury selection regarding the prospective jurors’
perception of a victim recanting a prior allegation made against a
loved one (see CPL 470.05 [2]), and we decline to exercise our power
to review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). To the extent that any of the
prosecutor’s other remarks “could have been understood by prospective
jurors as instructions on the law, any resulting prejudice was
eliminated by the prosecutor’s statement[s] that the trial court would
instruct them later, and by the trial court’s instructions to the
jury” (People v Alvarez, 304 AD2d 313, 313, lv denied 100 NY2d 578;
see People v Din, 62 AD3d 1023, 1024, lv denied 13 NY3d 795).

     Defendant further contends that reversal of the judgment is
required because the court erred in permitting the People to present
evidence of a prior bad act, i.e., a witness’s testimony that she had
seen defendant in possession of the subject gun two years prior to the
instant crime. We reject that contention. To the extent that
defendant contends that the People’s motion in limine concerning the
witness’s testimony was untimely because it was brought just before
jury selection on the first day of trial, we conclude that his
contention lacks merit. “[A] defendant is not entitled as a matter of
law to pretrial notice of the People’s intention to offer evidence
pursuant to People v Molineux (168 NY 264 [1901]) or to a pretrial
hearing on the admissibility of such evidence” (People v Small, 12
NY3d 732, 733; see generally People v Ventimiglia, 52 NY2d 350, 362;
People v Holmes, 104 AD3d 1288, 1289-1290, lv denied 22 NY3d 1041).
Nonetheless, the Court of Appeals “outlined in . . . Ventimiglia a
procedure to be followed in order to avoid unfairness to the
defendant,” whereby “a prosecutor seeking to introduce Molineux
evidence ‘should ask for a ruling out of the presence of the jury’
. . . , and . . . any hearing with respect to the admissibility of
such evidence should occur either before trial or, at the latest,
‘just before the witness testifies’ ” (Small, 12 NY3d at 733). The
Court of Appeals emphasized that “there is no requirement that such
inquiry or ruling occur before trial commences” (id.). Here, when the
court initially reserved decision on the People’s motion with respect
to the witness’s testimony regarding defendant’s past possession of
the gun, it ruled, in effect, that the People would not be allowed to
introduce such evidence of a prior bad act or uncharged crime as part
of their case-in-chief unless defendant opened the door to such
testimony by denying knowledge and/or possession of the gun (see
generally People v Ortiz, 259 AD2d 979, 980, lv denied 93 NY2d 1024).
Although the prosecutor improperly referenced the witness’s proposed
testimony during her opening statement, defense counsel did not object
and, thereafter, opened the door to the witness’s testimony by arguing
during his opening statement that defendant’s wife owned the gun and
knew its exact location in the residence, and that defendant was
stunned by the discovery of the gun and had no knowledge of it (see
People v Kidd, 112 AD3d 994, 995-996, lv denied 23 NY3d 1039; People v
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                                                         KA 14-00658

Cimino, 49 AD3d 1155, 1156, lv denied 10 NY3d 861; see generally
People v Rojas, 97 NY2d 32, 34-39).

     With respect to the admission of the witness’s testimony, it is
well established that “[e]vidence of . . . prior uncharged crime[s]
[or prior bad acts] may not be admitted solely to demonstrate a
defendant’s bad character or criminal propensity, but may be
admissible if linked to a specific material issue or fact relating to
the crime[s] charged, and if its probative value outweighs its
prejudicial [effect]” (People v Blair, 90 NY2d 1003, 1004-1005; see
Kidd, 112 AD3d at 995). Here, contrary to defendant’s contention, the
testimony that he had previously possessed the gun and had shown it to
the witness in the residence after retrieving it from a safe “was
relevant and probative of a material element of a crime charged,
namely, defendant’s knowing possession of the gun” (Kidd, 112 AD3d at
995; see People v Delarosa, 84 AD3d 832, 834, lv denied 17 NY3d 815).
“Although the court arguably could have better ‘recited its
discretionary balancing of the probity of such evidence against its
potential for prejudice’ . . . , we conclude that, viewing the record
in its entirety, the court conducted the requisite balancing test”
(Holmes, 104 AD3d at 1290). Contrary to defendant’s contention, the
court properly concluded that the probative value of the witness’s
testimony outweighed its prejudicial effect (see Kidd, 112 AD3d at
995). In any event, the court minimized any prejudicial effect by
instructing the jury immediately after the witness’s testimony and
during the jury charge that the testimony was to be considered only
with respect to the allegation that defendant knowingly possessed the
gun and was not to be considered as evidence of a propensity to commit
the crime charged (see People v Hernandez, 103 AD3d 433, 433-434, lv
denied 22 NY3d 1041; Delarosa, 84 AD3d at 834; see generally Small, 12
NY3d at 733).

     We reject defendant’s contention that the conviction is not
supported by legally sufficient evidence. “ ‘To meet their burden of
proving defendant’s constructive possession of the [gun], the People
had to establish that defendant exercised dominion or control over
[the gun] by a sufficient level of control over the area in which
[it was] found’ ” (People v Diallo, 137 AD3d 1681, 1682; see People v
Manini, 79 NY2d 561, 573-574). Here, the People presented evidence
that the police officer discovered the stolen, loaded gun in the
slightly opened safe located inside a bedroom in defendant’s
residence, and that the safe also contained ammunition, a holster, and
mail addressed to defendant (see People v Diaz, 24 NY3d 1187,
1189-1190). The People presented further testimony that defendant
used and had authority over the safe in which the gun was located (see
People v Ortiz, 61 AD3d 779, 780, lv denied 13 NY3d 748). Viewing the
evidence in the light most favorable to the People, we conclude that
defendant exercised dominion and control over the gun by a sufficient
level of control over the area in which it was discovered, and thus
the evidence is legally sufficient to establish beyond a reasonable
doubt that defendant constructively possessed the gun (see id.). In
addition, “there was sufficient evidence that defendant’s possession
of the [gun] was knowing, [inasmuch] as[,] ‘[g]enerally, possession
                                 -4-                           514
                                                         KA 14-00658

suffices to permit the inference that the possessor knows what he
possesses, especially, but not exclusively, if it is . . . on his
premises’ ” (Diaz, 24 NY3d at 1190).

     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 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). “Even assuming, arguendo, that a
different verdict would not have been unreasonable, ‘the jury was in
the best position to assess the credibility of the witnesses and, on
this record, it cannot be said that the jury failed to give the
evidence the weight it should be accorded’ ” (People v Chelley, 121
AD3d 1505, 1506, lv denied 24 NY3d 1218, reconsideration denied 25
NY3d 1070).

     We further conclude that, contrary to defendant’s contention, the
court did not err in denying his motion for a trial order of dismissal
at the close of the People’s proof on the ground that the People
failed to comply with CPL 200.60 (3). Defendant waived the procedural
requirements of that statute when he stipulated on the day of the
suppression hearing to the correctness of his prior conviction as
enumerated in the special information filed by the People (see People
v Ward, 57 AD3d 582, 583, lv denied 12 NY3d 789; People v Santiago,
244 AD2d 263, 263, lv denied 91 NY2d 879).

     Defendant further contends that the court erred in permitting the
People to impeach the trial testimony of defendant’s wife with prior
inconsistent statements by playing for the jury an audio recording of
a telephone call that she made to the police reporting that defendant
possessed a gun and had threatened her. Initially, upon our review of
the record, we conclude that effective appellate review of defendant’s
contention is not precluded by the fact that the audio recording has
been lost (see People v Cruz, 134 AD3d 1455, 1456; see generally
People v Yavru-Sakuk, 98 NY2d 56, 60-61). Although the court erred in
permitting the People to play the audio recording because they failed
to lay a proper foundation for it (see People v Ely, 68 NY2d 520, 527;
People v Joyner, 240 AD2d 282, 286-287, lv denied 90 NY2d 906; People
v Concepcion, 175 AD2d 324, 327, lv denied 78 NY2d 1010), the court
gave a limiting instruction that minimized any prejudice (see
generally People v Barner, 30 AD3d 1091, 1092, lv denied 7 NY3d 809),
and we conclude that the error is harmless inasmuch as the proof of
defendant’s guilt is overwhelming and there is no significant
probability that the jury would have acquitted defendant in the
absence of the audio recording (see generally People v Crimmins, 36
NY2d 230, 241-242; People v Fineout, ___ AD3d ___, ___, [May 6,
2016]).

     Even assuming, arguendo, that defendant’s contentions with
respect to the court’s consideration of certain information in
reaching its sentence are preserved for our review, we conclude that
they are without merit. “Generally, as a matter of due process, an
offender may not be sentenced on the basis of materially untrue
                                 -5-                           514
                                                         KA 14-00658

assumptions or misinformation, and the sentencing court must be
assured that the information upon which it bases the sentence is
reliable and accurate” (People v Crawford, 55 AD3d 1335, 1336, lv
denied 11 NY3d 896 [internal quotation marks omitted]; see People v
Naranjo, 89 NY2d 1047, 1049). Here, the court properly relied on
defendant’s criminal history as contained in the presentence
investigation report and the additional information in the People’s
sentencing memorandum documenting those same crimes (see People v
Weinsheimer, 68 AD3d 901, 902, lv denied 14 NY3d 807). To the extent
that defendant contends that the People’s sentencing memorandum was
untimely (see CPL 390.40 [2]), we note that he raised no such
objection at sentencing and that he has therefore failed to preserve
that contention for our review (see People v De Torres, 96 AD2d 609,
609-610). Contrary to his further contention, “ ‘[t]he court did not
base its sentence on a crime of which defendant had been acquitted . .
. , but rather sentenced him based on all the relevant facts and
circumstances surrounding the crime of which he was convicted’ . . . ,
as it was required to do” (People v Lipford, 129 AD3d 1528, 1531, lv
denied 26 NY3d 1041; cf. People v Flowers, 97 AD3d 693, 693, lv denied
19 NY3d 1102). We reject defendant’s contention that the sentence is
unduly harsh and severe.

     We agree with defendant, however, that the court erred in
granting an order of protection in favor of his wife inasmuch as
defendant, having previously been convicted of a crime, was found
guilty of possessing a loaded firearm in his home (Penal Law § 265.03
[3]; see § 265.02 [1]), which is not a “crime or violation between
spouses, between a parent and child, or between members of the same
family or household” (CPL 530.12 [5]; see People v Petrusch, 306 AD2d
889, 890). We therefore modify the judgment accordingly.




Entered:   July 1, 2016                        Frances E. Cafarell
                                               Clerk of the Court
