PEOPLE v. GRAHAM (2021)

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 criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Defendant was previously convicted of criminal possession of a weapon in the second degree and endangering the welfare of a child, arising from the same incident, but this Court reversed that judgment and dismissed the indictment on the grounds that neither the grand jury nor the petit jury was instructed on the defense of temporary innocent possession (People v. Graham, 148 A.D.3d 1517, 50 N.Y.S.3d 196 [4th Dept. 2017]).

We reject defendant's contention that the grand jury proceedings resulting in the new indictment were defective. Although defendant was restrained when he testified before the grand jury, the prosecutor twice instructed the grand jury not to draw any negative inference from the restraints, and we conclude that those instructions were “sufficient to dispel any potential prejudice to defendant” (People v. Barnes, 139 A.D.3d 1371, 1373, 30 N.Y.S.3d 787 [4th Dept. 2016], lv denied 28 N.Y.3d 926, 40 N.Y.S.3d 355, 63 N.E.3d 75 [2016] [internal quotation marks omitted]; see People v. Griggs, 117 A.D.3d 1523, 1523, 985 N.Y.S.2d 369 [4th Dept. 2014], affd 27 N.Y.3d 602, 36 N.Y.S.3d 421 56 N.E.3d 203 [2016], rearg denied 28 N.Y.3d 957, 38 N.Y.S.3d 526, 60 N.E.3d 422 [2016]; People v. Cotton, 120 A.D.3d 1564, 1565, 993 N.Y.S.2d 225 [4th Dept. 2014], lv denied 27 N.Y.3d 963, 36 N.Y.S.3d 625, 56 N.E.3d 905 [2016]). We further conclude that “defendant has not established a possibility of prejudice justifying the exceptional remedy of dismissal of the indictment” based on the prosecutor's instruction to the grand jury on constructive possession (People v. Wisdom, 23 N.Y.3d 970, 973, 989 N.Y.S.2d 678, 12 N.E.3d 1107 [2014]). Additionally, although we agree with defendant that the prosecutor erred in presenting to the grand jury testimony from the victim contradicting evidentiary facts that were resolved in defendant's favor at the first trial (see People v. O'Toole, 22 N.Y.3d 335, 338, 980 N.Y.S.2d 350, 3 N.E.3d 687 [2013]; see also People v. Williams, 163 A.D.3d 1418, 1420, 80 N.Y.S.3d 608 [4th Dept. 2018]), we conclude that the submission of that testimony involved “the erroneous handling of evidentiary matters, [which does] not merit invalidation of the indictment” where, as here, the remaining evidence is sufficient to establish the charge for which defendant was indicted (People v. Thompson, 22 N.Y.3d 687, 699, 985 N.Y.S.2d 428, 8 N.E.3d 803 [2014], rearg denied 23 N.Y.3d 948, 987 N.Y.S.2d 601, 10 N.E.3d 1157 [2014]; see Wisdom, 23 N.Y.3d at 972, 989 N.Y.S.2d 678, 12 N.E.3d 1107; People v. Huston, 88 N.Y.2d 400, 409, 646 N.Y.S.2d 69, 668 N.E.2d 1362 [1996]).

Defendant further contends that the evidence is legally insufficient to establish that the firearm recovered was “loaded with live ammunition” (People v. Redmond, 182 A.D.3d 1020, 1022, 123 N.Y.S.3d 331 [4th Dept. 2020], lv denied 35 N.Y.3d 1048, 127 N.Y.S.3d 856, 151 N.E.3d 537 [2020]; see Penal Law § 265.03 [3]). We reject that contention. The firearms examiner testified that she successfully test fired one of the three rounds submitted to her, and the officer who discovered the firearm testified that those three rounds were recovered from the firearm. Thus, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983]), we conclude that there is a valid line of reasoning and permissible inferences from which a rational jury could have found that element of the crime proved beyond a reasonable doubt (see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]). Viewing the evidence in light of the elements of the crime as charged to the jury (see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we likewise reject defendant's contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Although a different verdict would not have been unreasonable (see Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), the jury did not “fail[ ] to give the evidence the weight it should be accorded” (Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Contrary to defendant's contention, Supreme Court did not abuse its discretion in responding to the jury's request for information by declining to reread the definition of temporary innocent possession inasmuch as the jury did not request a rereading of that definition (see People v. Almodovar, 62 N.Y.2d 126, 131-132, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984]; People v. Sanchez, 160 A.D.3d 903, 903, 74 N.Y.S.3d 598 [2d Dept. 2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018]; People v. Martinez, 8 A.D.3d 8, 9, 777 N.Y.S.2d 488 [1st Dept. 2004], lv denied 3 N.Y.3d 677, 784 N.Y.S.2d 16, 817 N.E.2d 834 [2004]).

Finally, the sentence is not unduly harsh or severe.