PEOPLE v. HOLDBY (2018)

MEMORANDUM AND ORDER

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[3] ).  Contrary to defendant's contention, County Court properly refused to suppress the guns recovered from an apartment and his statements to the police.  The evidence at the suppression hearing established that the police were notified by the apartment manager that maintenance workers found a bag containing two handguns in an apartment that was supposed to be vacant.  When the police arrived, defendant was inside the apartment and told the officers that he resided there.  Defendant also told the officers that he was on federal probation.  The officers contacted defendant's probation officer, who determined that the residence should be searched because defendant was in violation of his probation by using the apartment as a residence without informing the probation officer.  During the search conducted by probation officers, the guns were located.  We conclude that the search of the residence by the probation officers was lawful (see People v. Adams, 126 A.D.3d 1405, 1405, 5 N.Y.S.3d 779 [4th Dept. 2015], lv denied 25 N.Y.3d 1158, 15 N.Y.S.3d 291, 36 N.E.3d 94 [2015];  People v. Davis, 101 A.D.3d 1778, 1779, 957 N.Y.S.2d 803 [4th Dept. 2012], lv denied 20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013] ).  Contrary to defendant's contention, exigent circumstances were not required for the search.  We reject defendant's further contention that his statements should have been suppressed.  The questions asked by one of the police officers upon arriving at the apartment were investigatory in nature and did not constitute interrogation (see People v. Spirles, 136 A.D.3d 1315, 1316, 25 N.Y.S.3d 462 [4th Dept. 2016], lv denied 27 N.Y.3d 1007, 38 N.Y.S.3d 116, 59 N.E.3d 1228 [2016], cert denied ––– U.S. ––––, 137 S.Ct. 298, 196 L.Ed.2d 220 [2016];  People v. Shelton, 111 A.D.3d 1334, 1336–1337, 974 N.Y.S.2d 224 [4th Dept. 2013], lv denied 23 N.Y.3d 1025, 992 N.Y.S.2d 808, 16 N.E.3d 1288 [2014] ).

Defendant failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ).  In any event, contrary to defendant's contention, the evidence is legally sufficient to establish that he exercised dominion and control over the area where the firearms were found (see Davis, 101 A.D.3d at 1779–1780, 957 N.Y.S.2d 803;  People v. Mattison, 41 A.D.3d 1224, 1225, 837 N.Y.S.2d 464 [4th Dept. 2007], lv denied 9 N.Y.3d 924, 844 N.Y.S.2d 179, 875 N.E.2d 898 [2007];  see generally People v. Manini, 79 N.Y.2d 561, 573–574, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ).  Contrary to defendant's further contention, the home exception of Penal Law § 265.03(3) is inapplicable inasmuch as defendant committed the crime of criminal possession of a weapon in the fourth degree and stipulated that he had previously been convicted of a crime (see §§ 265.01[1];  265.02[1];  People v. Jones, 22 N.Y.3d 53, 57, 977 N.Y.S.2d 739, 999 N.E.2d 1184 [2013];  People v. Barber, 117 A.D.3d 1430, 1431, 984 N.Y.S.2d 754 [4th Dept. 2014], lv denied 24 N.Y.3d 1081, 1 N.Y.S.3d 8, 25 N.E.3d 345 [2014] ).  Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we further conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).

The court did not abuse its discretion in denying defendant's CPL 330.30(1) motion to set aside the verdict on the ground of ineffective assistance of counsel without conducting a hearing (see People v. Morgan, 77 A.D.3d 1419, 1420, 908 N.Y.S.2d 779 [4th Dept. 2010], lv denied 15 N.Y.3d 922, 913 N.Y.S.2d 649, 939 N.E.2d 815 [2010] ).  In support of the motion, defendant submitted a report jointly prepared after trial by his three experts, who analyzed the fingerprint report of the People's expert.  Defense counsel asserted in an affirmation in support of defendant's motion that she should have sought an adjournment of the trial to give the defense experts sufficient time to review the People's report.  Defense counsel acknowledged, however, that one defense expert had reviewed the People's report prior to trial.  In fact, the record establishes that defense counsel raised the same issues during her cross-examination of the People's expert that the defense experts subsequently raised in their posttrial report, thus demonstrating that defense counsel had not needed to seek an adjournment.  We therefore conclude that defendant failed to demonstrate the absence of strategic or other legitimate explanations for defense counsel's alleged shortcomings (see People v. Nickel, 14 A.D.3d 869, 872, 788 N.Y.S.2d 274 [3d Dept. 2005], lv denied 4 N.Y.3d 834, 796 N.Y.S.2d 589, 829 N.E.2d 682 [2005];  see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ), and thus no hearing was necessary on the motion.

We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: