PEOPLE v. HADLOCK (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Madison County (Patrick J. O'Sullivan, J.), rendered February 7, 2019, upon a verdict convicting defendant of the crimes of menacing a police officer, resisting arrest, obstruction of governmental administration in the second degree and growing of the plant known as cannabis by unlicensed persons.

Following a standoff with law enforcement at his home, defendant was arrested and charged with criminal possession of a weapon in the second degree, menacing a police officer (two counts), resisting arrest, obstruction of governmental administration in the second degree and growing of the plant known as cannabis by unlicensed persons.  County Court denied defendant's subsequent motion to suppress physical evidence seized from the residence.  After commencement of a jury trial, County Court granted the People's motion to dismiss the charge of criminal possession of a weapon in the second degree.  At the conclusion of the trial, defendant was acquitted of one of the two counts of menacing a police officer, and convicted of each of the remaining counts.  Defendant was thereafter sentenced to four years in prison followed by 11/212 years of postrelease supervision on the menacing charge, and lesser concurrent jail terms on the other charges.  Defendant appeals.

Initially, defendant contends that the verdict is based upon legally insufficient evidence and is against the weight of the evidence.  Defendant's legal sufficiency argument is unpreserved, as he made only a general motion to dismiss at the close of the People's proof (see People v. Agan, 207 A.D.3d 861, 863, 172 N.Y.S.3d 177 [3d Dept. 2022], lvs denied 38 N.Y.3d 1186, 176 N.Y.S.3d 213, 197 N.E.3d 493 [2022], 39 N.Y.3d 939, 177 N.Y.S.3d 542, 198 N.E.3d 785 [2022]), with the exception of one specific argument pertaining to the charge upon which he was ultimately acquitted.  “Nevertheless, in the course of reviewing defendant's weight of the evidence challenge, this Court necessarily evaluates whether all elements of the charged crimes were proven beyond a reasonable doubt” (People v. Ashe, 208 A.D.3d 1500, 1501, 174 N.Y.S.3d 509 [3d Dept. 2022] [citations omitted], lv denied 39 N.Y.3d 961, 179 N.Y.S.3d 162, 200 N.E.3d 107 [2022]).  “When undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then weigh the relative probative force of conflicting testimony and the relative strength of the conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” (People v. Terry, 196 A.D.3d 840, 841, 149 N.Y.S.3d 705 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 432, 175 N.E.3d 457 [2021]).  “In conducting this analysis, we view the evidence in a neutral light and defer to the jury's credibility assessments” (People v. Paige, 211 A.D.3d 1333, 1334, 180 N.Y.S.3d 670 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 1143, 188 N.Y.S.3d 443, 209 N.E.3d 1271 [2023]).

As is relevant here, “[a] person is guilty of menacing a police officer ․ when he or she intentionally places or attempts to place a police officer ․ in reasonable fear of physical injury, serious physical injury or death by displaying a ․ rifle ․, whether operable or not, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer” (Penal Law § 120.18).  Additionally, “[a] person is guilty of obstructing governmental administration [in the second degree] when he [or she] intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act” (Penal Law § 195.05).  Further, “[a] person is guilty of resisting arrest when he [or she] intentionally prevents or attempts to prevent a police officer ․ from effecting an authorized arrest or himself [or herself]” (Penal Law § 205.30).  Finally, a person commits the last charged crime when, “without being licensed so to do ․, [he or she] grows the plant of the genus Cannabis or knowingly allows it to grow on his [or her] land without destroying the same” (Public Health Law former § 3382).

According to trial testimony introduced by the People, two sheriff's deputies traveled to defendant's home, a single-wide trailer located in the Town of Stockbridge, Madison County, to execute an arrest warrant issued by Oneida County Family Court, stemming from defendant's failure to pay child support.  One of the deputies was familiar with defendant, having served him with papers before, and expected the arrest to be uneventful.  However, when that deputy spoke to defendant at the door of his home, defendant stated that he was not going to jail and shut and locked the door in the deputy's face.  The deputy, watching through a window as defendant walked back into his living room, continued speaking with him while calling for backup.  Additional deputies arrived who could also see defendant through the window.  Eventually, two deputies began kicking the door in, to which defendant could be heard responding, “you don't wanna [expletive] do that, you don't wanna come in.”  The door was successfully breached and the two deputies went inside, one after the other.  The first deputy to enter encountered defendant pointing a rifle at him, and both deputies then quickly retreated and took cover.  After a standoff lasting an hour and a half to two hours, defendant exited his home without the weapon and was arrested.  At trial, the People also introduced into evidence a rifle, ammunition and marihuana that the police had seized from defendant's residence.¹  For his part, defendant testified that he stayed inside his trailer only because he was trying to think of ways to come up with the unpaid child support.  Defendant admitted to grabbing the rifle but asserted that he felt suicidal at that moment and therefore pointed the rifle at himself, not at the deputies.

We cannot say that an acquittal would have been unreasonable, particularly had the jury accepted defendant's version of events or agreed with defense counsel that supposed inconsistencies among law enforcement witnesses rendered their testimony not credible.  That said, deferring to the jury's credibility determinations, we find that the verdict is supported by the weight of the evidence (see People v. Damon, 200 A.D.3d 1323, 1325, 157 N.Y.S.3d 643 [3d Dept. 2021];  People v. Benjamin, 183 A.D.3d 1125, 1128, 123 N.Y.S.3d 770 [3d Dept. 2020]).

Next, defendant argues that the warrantless search of his home following his arrest was unlawful, the search warrant subsequently obtained was invalid and the physical evidence thereafter seized should have been suppressed.  The evidence at the suppression hearing revealed that, after defendant was arrested outside of his home, members of the State Police entered the trailer and conducted a warrantless protective sweep, observing a rifle, ammunition and marihuana plants in plain view.  An investigator then applied for a search warrant and, upon its issuance, the aforementioned items were seized.  The People claimed, and County Court determined, that the police executed a lawful protective sweep of the premises following the standoff, and the evidence observed in plain view was properly incorporated into the search warrant application and seized.

Upon a lawful arrest, the police may conduct a limited protective sweep of the premises, but this “is justified only when the police have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene” (People v. Sears, 165 A.D.3d 1482, 1485, 86 N.Y.S.3d 645 [3d Dept. 2018] [internal quotation marks and citations omitted], lv dismissed 32 N.Y.3d 1129, 93 N.Y.S.3d 267, 117 N.E.3d 826 [2018];  see Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 [1990];  People v. Harris, 141 A.D.3d 1024, 1026, 34 N.Y.S.3d 798 [3d Dept. 2016]).  The purported protective sweep conducted here was improper, as there were no articulable facts supporting a belief that any other person was present inside the trailer, let alone a person who could pose a threat to those on the scene (see People v. Sears, 165 A.D.3d at 1485, 86 N.Y.S.3d 645;  People v. Harris, 141 A.D.3d at 1026–1027, 34 N.Y.S.3d 798;  People v. Bost, 264 A.D.2d 425, 426, 693 N.Y.S.2d 235 [2d Dept. 1999];  compare People v. Bryant, 91 A.D.3d 558, 558, 937 N.Y.S.2d 55 [1st Dept. 2012], lv denied 20 N.Y.3d 1009, 960 N.Y.S.2d 352, 984 N.E.2d 327 [2013];  People v. Lasso–Reina, 305 A.D.2d 121, 122, 758 N.Y.S.2d 652 [1st Dept. 2003], lv denied 100 N.Y.2d 595, 766 N.Y.S.2d 171, 798 N.E.2d 355 [2003]).  Neither the search warrant nor the suppression hearing testimony reflected that anyone other than defendant was ever observed or believed to be inside the trailer, and there was nothing referenced that would serve to indicate that there was any lingering threat.

As a result, the ammunition and marihuana, which were only observed during the protective sweep, should have been suppressed (see People v. Sears, 165 A.D.3d at 1485, 86 N.Y.S.3d 645;  People v. Harris, 141 A.D.3d at 1027–1028, 34 N.Y.S.3d 798).  Accordingly, we must determine whether the admission of this evidence constituted harmless error, “which requires [consideration of] whether there was overwhelming proof of the defendant's guilt and whether there was any reasonable possibility that the People's error may have contributed to the defendant's conviction” (People v. Serrano, 200 A.D.3d 1340, 1346, 158 N.Y.S.3d 389 [3d Dept. 2021], affd 38 N.Y.3d 1180, 174 N.Y.S.3d 686, 195 N.E.3d 520 [2022];  see People v. Persen, 185 A.D.3d 1288, 1295, 128 N.Y.S.3d 340 [3d Dept. 2020], lv denied 36 N.Y.3d 1099, 144 N.Y.S.3d 121, 167 N.E.3d 1256 [2021];  People v. Burdine, 147 A.D.3d 1471, 1472, 47 N.Y.S.3d 591 [4th Dept. 2017], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017]).  We find that the admission of the ammunition was harmless, inasmuch as the evidence of defendant's guilt was overwhelming and, in light of the fact that the ammunition was not directly relevant to any of the elements of the charged crimes, there is no reasonable possibility that its admission contributed to the verdict.  We do not, however, reach the same conclusion with respect to the admission of the marihuana and its impact on the final charged count.  Thus, recognizing that the subject statute, Public Health Law former § 3382, has since been repealed, we hereby dismiss that charge (see L 2021, ch 92, § 6–c, eff March 31, 2021;  People v. Caba, 73 Misc.3d 132[A], *1, 2021 WL 4890264 [App. Term, 1st Dept. 2021]).

Turning to the rifle, suppression is not warranted.  The police had an independent source for their awareness of the rifle, having seen it when defendant pointed it at them upon their initial entry into the trailer, before the protective sweep was conducted (see People v. Elder, 173 A.D.3d 1344, 1345, 102 N.Y.S.3d 768 [3d Dept. 2019], lv denied 34 N.Y.3d 930, 109 N.Y.S.3d 749, 133 N.E.3d 455 [2019]).  As such, the inclusion of the rifle in the search warrant application and the subsequent seizure of it were not improper.

Defendant's additional challenges to the search warrant – to the effect that it was overbroad and lacked sufficient particularity – were belatedly raised for the first time in a postverdict motion and are therefore unpreserved for our review (see People v. Padro, 75 N.Y.2d 820, 821, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [1990];  People v. Hughes, 114 A.D.3d 1021, 1024, 981 N.Y.S.2d 158 [3d Dept. 2014], lv. denied 23 N.Y.3d 1038, 993 N.Y.S.2d 251, 17 N.E.3d 506 [2014]).  In any event, we find them to be unavailing (see People v. Williams, 140 A.D.3d 1526, 1527, 34 N.Y.S.3d 528 [3d Dept. 2016], lv denied 28 N.Y.3d 1076, 47 N.Y.S.3d 235, 69 N.E.3d 1031 [2016];  People v. Augustine, 235 A.D.2d 915, 919, 654 N.Y.S.2d 179 [3d Dept. 1997], appeal dismissed 89 N.Y.2d 1072, 659 N.Y.S.2d 850, 681 N.E.2d 1297 [1997], lv denied 89 N.Y.2d 1088, 660 N.Y.S.2d 381, 682 N.E.2d 982 [1997]).  To the extent that defendant contends that trial counsel was ineffective for failing to seek suppression on these grounds, we reject this contention, as counsel will not be faulted for failing to raise a meritless argument (see People v. Waite, 145 A.D.3d 1098, 1103 n, 42 N.Y.S.3d 437 [3d Dept. 2016], lv. denied 29 N.Y.3d 953, 54 N.Y.S.3d 384, 76 N.E.3d 1087 [2017];  People v. Wimberly, 86 A.D.3d 806, 808, 927 N.Y.S.2d 229 [3d Dept. 2011], lv denied 18 N.Y.3d 863, 938 N.Y.S.2d 870, 962 N.E.2d 295 [2011]).

Defendant further contends that certain questions and comments by the prosecutor amounted to prosecutorial misconduct.  First, on cross-examination, the prosecutor asked defendant why he did not call a witness to corroborate certain aspects of his testimony.  However, County Court promptly sustained defense counsel's objection, directed the jury to disregard the question and issued a comprehensive curative instruction to the jury advising that defendant has no burden of proof, thereby ameliorating any prejudice to defendant (see People v. Nadal, 131 A.D.3d 729, 731, 14 N.Y.S.3d 591 [3d Dept. 2015], lv denied 26 N.Y.3d 1041, 22 N.Y.S.3d 171, 43 N.E.3d 381 [2015];  People v. Terry, 85 A.D.3d 1485, 1487, 926 N.Y.S.2d 216 [3d Dept. 2011], lv denied 17 N.Y.3d 862, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011]).  Next, given that defense counsel had questioned the credibility of certain law enforcement witnesses both on cross-examination and during closing argument, it was not improper for the prosecutor to ask the jury during summation to consider whether these witnesses had a motive to lie (see People v. Heiserman, 127 A.D.3d 1422, 1424, 7 N.Y.S.3d 653 [3d Dept. 2015];  People v. Barber, 13 A.D.3d 898, 900, 787 N.Y.S.2d 424 [3d Dept. 2004], lv denied 4 N.Y.3d 796, 795 N.Y.S.2d 171, 828 N.E.2d 87 [2005]).  Defendant failed to preserve his remaining claims of misconduct by way of timely objections (see People v. Paige, 211 A.D.3d at 1337, 180 N.Y.S.3d 670).  In any event, “our review of the record as a whole fails to disclose that the prosecutor engaged in a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive defendant of a fair trial” (People v. Rivera, 206 A.D.3d 1356, 1360, 170 N.Y.S.3d 672 [3d Dept. 2022] [internal quotation marks and citations omitted], affd 39 N.Y.3d 1062, 183 N.Y.S.3d 57, 203 N.E.3d 632 [2023], cert denied ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2023 WL 4163326 [June 26, 2023];  see People v. Gertz, 204 A.D.3d 1166, 1171, 166 N.Y.S.3d 739 [3d Dept. 2022], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 434, 191 N.E.3d 386 [2022]).

Finally, as defendant concedes in his reply brief, his argument that the sentence imposed was unduly harsh and excessive is moot, given that he completed his sentence during the pendency of this appeal (see People v. Vivona, 199 A.D.3d 1165, 1166, 156 N.Y.S.3d 602 [3d Dept. 2021]).

ORDERED that the judgment is modified, on the law, by reversing defendant's conviction of growing of the plant known as cannabis by unlicensed persons under count 6 of the superior court information;  said count dismissed and the sentence imposed thereon vacated;  and, as so modified, affirmed.

FOOTNOTES

1.   For reasons more fully explained below, we find that the ammunition and marihuana should have been suppressed.  Nevertheless, we perform our weight of the evidence review based upon the evidence received at trial (see People v. Persen, 185 A.D.3d 1288, 1291 n 1, 128 N.Y.S.3d 340 [3d Dept. 2020], lv denied 36 N.Y.3d 1099, 144 N.Y.S.3d 121, 167 N.E.3d 1256 [2021];  People v. Wright, 81 A.D.3d 1161, 1163, 918 N.Y.S.2d 598 [3d Dept. 2011], lv denied 17 N.Y.3d 803, 929 N.Y.S.2d 112, 952 N.E.2d 1107 [2011]).

Ceresia, J.

Egan Jr., J.P., Aarons, Fisher and McShan, JJ., concur.