PEOPLE v. POINTER (2024)

Judgment, Supreme Court, New York County (Mark Dwyer, J.), rendered December 10, 2018, as amended December 11, 2018, convicting defendant, after a jury trial, of criminal sale of a firearm in the second degree, criminal sale of a firearm in the third degree (eight counts), and conspiracy in the fourth degree, and sentencing him to an aggregate prison term of 13 years, unanimously affirmed.

The verdict was based on legally sufficient evidence, which established the geographic jurisdiction of New York State over each offense based on defendant's acts and the acts of his accomplices (see Penal Law § 20.00), notwithstanding that defendant was physically located in Virginia (see CPL 20.20[1][a];  [2][d];  People v. Kassebaum, 95 N.Y.2d 611, 620 [2001], cert denied 532 U.S. 1069 [2001]).  As we determined on codefendant's appeal, the testimony, documentary evidence, and intercepted communications showed that defendant and several accomplices engaged in a firearms trafficking operation, in which one participant arranged to purchase and pick up firearms in several southern states and transported them to New York for resale.  Recorded conversations between defendant and the accomplice, as well as the testimony of a “straw purchaser” who purchased guns for defendant in her name, supported reasonable inferences that defendant knowingly supplied the accomplice with eight firearms, and that defendant was aware that the accomplice subsequently sold them in New York (see People v. Jenkins, 214 AD3d 517 [1st Dept 2023], lv denied 40 NY3d 929 [2023];  People v. Alvarez, 158 AD3d 587 [1st Dept 2018], lv denied 31 NY3d 1114 [2018]).

Defendant has not preserved his claim that the evidence was legally insufficient to prove his guilt of second-degree criminal sale of a firearm, and we decline to review his claim in the interest of justice.  As an alternative holding, contrary to defendant's contention, the statutory provision in effect at the time expressly authorized the aggregation of firearms sold in different transactions to meet the statutory threshold, as it criminalized the sale of “a total of five or more firearms in a period of not more than a year” (Penal Law § 265.12[2]).

Defendant also has not preserved his claim that the court improperly constructively amended that count (see People v. Whitecloud, 110 AD3d 626 [1st Dept 2013], lv denied 22 NY3d 1142 [2014]), and in fact affirmatively waived his claim (see People v. Muhammad, 34 NY3d 1152, 1153–1154 [2020]).  We decline to review that claim in the interest of justice.  As an alternative holding, we find no basis for reversal.  The limited difference between the language of the indictment and the court's charge, which tracked the statutory language, did not violate defendant's rights or prejudice him.  At most, the court's charge was a permissible constructive amendment of that count as to the time and date of the crime, and did not change the theory of the case (see CPL 200.70[1]; People v. Straniero, 17 AD3d 161 [1st Dept 2005], lv denied 5 NY3d 795 [2005];  People v. Parrilla, 285 A.D.2d 157 [1st Dept 2001], lv denied 97 N.Y.2d 657 [2001], cert denied 535 U.S. 1020 [2002]).

Defendant's ineffective assistance of counsel claims are unreviewable on direct appeal because they involve matters not fully explained by the record (see People v. Rivera, 71 N.Y.2d 705, 709 [1988];  People v. Love, 57 N.Y.2d 998 [1982]).  Although defendant made a CPL 440.10 motion on one of the grounds he now raises, he did not appeal from the court's denial of his motion;  thus, that claim is not properly before the court.  In the alternative, to the extent that the existing record permits review, we find that defendant received effective assistance under state and federal standards (see People v. Benevento, 91 N.Y.2d 708, 713–714 [1998];  Strickland v. Washington, 466 U.S. 668 [1984]).

We decline to consider defendant's Molineux claim, raised for the first time in his reply brief.  As an alternative holding, we reject it as unpreserved and unavailing.