PEOPLE v. MYERS (2021)

Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered December 15, 2017, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree and selling an imitation controlled substance in violation of Public Health Law § 3383, and sentencing him to an aggregate term of five years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  There is no basis for disturbing the jury's credibility determinations, including its resolution of minor inconsistencies in testimony.  Immediately after undercover officers saw defendant place a bag behind a bench, other officers arrested defendant, who was sitting on the bench, for a drug sale.  One of these officers looked behind the bench and found defendant's bag, which contained a loaded pistol and an imitation controlled substance similar to the substance defendant had sold to an undercover officer earlier in the day.  The record fails to support defendant's assertion that the bag recovered by the police may not have been the same bag defendant deposited, moments earlier, in the same place.

The court providently denied defendant's request for a circumstantial evidence charge.  No such charge was required, because the People presented both direct and circumstantial evidence of defendant's guilt of the gun possession charges (see People v. Roldan, 88 N.Y.2d 826, 827, 643 N.Y.S.2d 960, 666 N.E.2d 553 [1996] [“A defendant's request for a circumstantial evidence instruction must be allowed when proof of guilt rests exclusively on circumstantial evidence”]).  Two undercovers officers observed defendant holding a plastic bag as he entered the park;  one of the undercovers saw him put the bag behind the bench, where a backup-team detective found the bag containing the pistol.  The officers' testimony constituted direct evidence of defendant's dominion and control over the bag in which the gun was found (People v. Hardy, 26 N.Y.3d 245, 251, 22 N.Y.S.3d 377, 43 N.E.3d 734 [2015];  see also Roldan, 88 N.Y.2d at 827, 643 N.Y.S.2d 960, 666 N.E.2d 553).  Thus, the proof connecting defendant to the gun was not wholly circumstantial.

The People made a sufficiently particularized showing of an overriding interest justifying all aspects of the court's ruling on closure of the courtroom during the testimony of an undercover officer (see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 [1984];  People v. Echevarria, 21 N.Y.3d 1, 12–14, 966 N.Y.S.2d 747, 989 N.E.2d 9 [2013], cert denied 571 U.S. 1111, 134 S.Ct. 823, 187 L.Ed.2d 688 [2014];  People v. Johnson, 116 A.D.3d 501, 502, 983 N.Y.S.2d 531 [1st Dept. 2014], lv denied 23 N.Y.3d 1021, 992 N.Y.S.2d 804, 16 N.E.3d 1284 [2014]).  In addition to such factors as the officer's expected return to undercover work in the area of defendant's arrest and her pending cases and lost subjects from that area, there were several incidents, one of which occurred in court during a suppression hearing, indicating that defendant and his relatives or associates might be seeking to reveal the officer's identity in order to disrupt her future work.

We perceive no basis for reducing the sentence.