THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. TOBIAS BOYLAND DEFENDANT APPELLANT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 460.50(5).

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of three counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) and one count of criminal possession of a weapon in the fourth degree (§ 265.01[4] ).   Supreme Court properly refused to suppress weapons seized by the police from the walk-in closet on the second floor of defendant's residence.   The evidence at the suppression hearing established that the original search warrant identified the place to be searched as a “lower floor apartment” but that, during the execution of the initial search warrant, the officers discovered that the residence had been converted from a two-family to a single-family dwelling.   When the police officers heard voices upstairs, they properly conducted a protective sweep of the second floor based upon “articulable facts that warranted a reasonably prudent officer's belief that the [second floor] might harbor an individual posing a danger to those on the scene” (People v. Eddo, 55 AD3d 922, 923, lv denied 11 NY3d 897;  see People v. Rivera, 172 A.D.2d 1059).   The protective sweep properly encompassed the walk-in closet, which was described at the suppression hearing as being large enough to conceal five or six individuals (see People v. Febus, 157 A.D.2d 380, 385, appeal dismissed 77 N.Y.2d 835), and the rifle found in plain view therein was properly seized by the police (see Eddo, 55 AD3d at 923;  Rivera, 172 A.D.2d at 1059).   The remaining weapons were properly seized subsequent to the issuance of an amended warrant identifying the place to be searched as the entire residence (see People v. Aguirre, 220 A.D.2d 438, 439-440;  People v. Martinez [appeal No. 2], 187 A.D.2d 992, 993, lv denied 81 N.Y.2d 889).

Defendant failed to preserve for our review his contention that the jury instruction regarding constructive possession altered the theory of the prosecution (see CPL 470.05[2];  People v. Said, 174 A.D.2d 1010, 1011, lv. denied 78 N.Y.2d 1130), 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] ).   The evidence, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621), is legally sufficient to establish defendant's constructive possession of the weapons (see People v. Torres, 68 N.Y.2d 677, 679;  People v. Skyles, 266 A.D.2d 321, 322, lv denied 94 N.Y.2d 867).   Further, 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 N.Y.2d 490, 495).   Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court