PEOPLE v. HATCHETT (2022)

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered September 25, 2018, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to an aggregate term of nine years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the third-degree weapon possession conviction and dismissing that count of the indictment, and otherwise affirmed.

This Court held this appeal in abeyance pending a determination, based on the suppression hearing minutes, of issues raised at the hearing but not decided (196 A.D.3d 431, 147 N.Y.S.3d 406 [1st Dept. 2021]).  On remand, the hearing court again denied suppression of a cartridge recovered from defendant's pants pocket, correctly finding that “the police were acting in their public service function in rendering aid when searching the defendant's clothing for identification.”  When police arrived, defendant was lying on the ground and screaming that he had been shot.  He appeared to have been shot in the leg, he was drifting in and out of consciousness, and he could not state his name.  At that point, the officers were treating defendant as an injured victim rather than a suspect, and were not performing a law enforcement function (see People v. De Bour, 40 N.Y.2d 210, 218–219, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976]).  Under the circumstances, it was reasonable for the officers to believe defendant needed immediate assistance and to search his pants for identification as they waited for him to be transported to the hospital (see People v. Molnar, 98 N.Y.2d 328, 333, 746 N.Y.S.2d 673, 774 N.E.2d 738 [2002];  People v. Mitchell, 39 N.Y.2d 173, 177–178, 383 N.Y.S.2d 246, 347 N.E.2d 607 [1976];  People v. Capellan, 38 A.D.3d 393, 394, 833 N.Y.S.2d 20 [2007], lv denied 9 N.Y.3d 873, 842 N.Y.S.2d 785, 874 N.E.2d 752 [2007]).  In performing this public service function, it was reasonable for the police to ascertain the identity of the person they were aiding and to supply that information to medical personnel, and defendant did not appear capable of communicating his identity.

Turning to the issues not addressed on the initial stage of this appeal, we first find that the trial court should have precluded, on the ground of lack of notice of the People's intention to introduce it (see CPL 710.30[1][a];  People v. Boughton, 70 N.Y.2d 854, 855, 523 N.Y.S.2d 454, 517 N.E.2d 1340 [1987]), evidence of defendant's false statement to the police that someone had shot him.  However, any error was harmless in light of the overwhelming evidence establishing defendant's knowing and unlawful possession of the pistol with which he accidentally shot himself (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).  This evidence included a surveillance video and the cartridge found in defendant's pants.

The court providently exercised its discretion in denying defendant's request to reread the charge on temporary innocent possession in response to the jury's note requesting the “elements” of criminal possession of a weapon in the second and third degrees.  The court's response was meaningful in light of the jury's specific request for the elements of the offenses, and the court was not obligated to go beyond that request (see People v. Almodovar, 62 N.Y.2d 126, 131–132, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984]).  Moreover, the jury had already requested and received a rereading of the temporary innocent possession charge.

Because defendant's convictions are based on his possession of the same weapon, we vacate the third-degree conviction in the interest of justice (see e.g. People v. Riddick, 307 A.D.2d 821, 822, 763 N.Y.S.2d 319 [1st Dept. 2003], lv denied 1 N.Y.3d 541, 775 N.Y.S.2d 246, 807 N.E.2d 296 [2003]).

We perceive no basis for reducing the sentence.