PEOPLE v. ADAMS (2024)

MEMORANDUM AND ORDER

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 two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]). Defendant's conviction stems from his conduct in firing a weapon while in a parking lot of a gas station, which conduct was captured on surveillance videos. We reject defendant's contention that Supreme Court erred in denying his request to charge criminal possession of a weapon in the fourth degree as a lesser included offense of criminal possession of a weapon in the second degree. Defendant requested the lesser included offense on the theory that only blanks were fired from the weapon. Although criminal possession of a weapon in the fourth degree (§ 265.01 [1]) is a lesser included offense of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]; see People v. Johnson, 74 A.D.3d 1912, 1913, 904 N.Y.S.2d 847 [4th Dept. 2010]; People v. Laing, 66 A.D.3d 1353, 1355, 886 N.Y.S.2d 287 [4th Dept. 2009], lv denied 13 N.Y.3d 908, 895 N.Y.S.2d 322, 922 N.E.2d 911 [2009]), we conclude that “[t]here is no reasonable view of the evidence that would allow the jury to conclude, without resorting to speculation, that defendant committed the lesser offense but not the greater” (People v. Taylor, 83 A.D.3d 1505, 1506, 921 N.Y.S.2d 455 [4th Dept. 2011], lv denied 17 N.Y.3d 822, 929 N.Y.S.2d 811, 954 N.E.2d 102 [2011]; see Laing, 66 A.D.3d at 1355, 886 N.Y.S.2d 287; see generally People v. Cotarelo, 71 N.Y.2d 941, 942-943, 528 N.Y.S.2d 816, 524 N.E.2d 137 [1988]; People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982]). Although no projectiles were recovered at the scene, a police technician and a firearms examiner testified that the casings in the weapon were consistent with live rounds of ammunition and not blanks.

We reject defendant's further contention that he was prejudiced by the admission in evidence of body camera footage from police officers who responded to the scene of the shooting and arrested defendant. Defendant's statements on the videos were admissible as party admissions (see People v. Caban, 5 N.Y.3d 143, 151 n, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005]; People v. Brinkley, 174 A.D.3d 1159, 1165-1166, 106 N.Y.S.3d 210 [3d Dept. 2019], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 646, 137 N.E.3d 16 [2019]), and their probative value to defendant's consciousness of guilt outweighed the prejudice (see People v. Joe, 146 A.D.3d 587, 590, 47 N.Y.S.3d 244 [1st Dept. 2017], lv denied 29 N.Y.3d 1081, 64 N.Y.S.3d 171, 86 N.E.3d 258 [2017]). To the extent the court erred in admitting the officers’ hearsay statements, we conclude that the error is harmless (see People v. Molson, 89 A.D.3d 1539, 1541-1542, 933 N.Y.S.2d 160 [4th Dept. 2011], lv denied 18 N.Y.3d 960, 944 N.Y.S.2d 489, 967 N.E.2d 714 [2012]). The evidence of defendant's guilt was overwhelming, and there was no significant probability that defendant would have been acquitted had those statements been excluded (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

Finally, the sentence is not unduly harsh or severe.