PEOPLE v. BATTLE (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (John Latella, J.), rendered October 2, 2019, convicting him of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), criminal possession of a firearm, and operating a motor vehicle without required lighted headlamps, upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing (Steven Paynter, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a weapon in the third degree, based upon his possession of a dagger, beyond a reasonable doubt.  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt as to that count was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's contention that Penal Law §§ 265.02(1) and 265.01(2) are unconstitutionally vague on their face and as applied to him due to the absence of a statutory definition of the term “dagger” is unpreserved for appellate review (see CPL 470.05[2];  People v. Hubsher, 176 A.D.3d 972, 972, 108 N.Y.S.3d 350).  In any event, this contention is without merit, as “ ‘the statute[s] provide[ ] the defendant with adequate notice and the police with clear criteria’ for enforcement” (People v. Hubsher, 176 A.D.3d at 972, 108 N.Y.S.3d 350, quoting People v. Stuart, 100 N.Y.2d 412, 422, 765 N.Y.S.2d 1, 797 N.E.2d 28;  see Police Benevolent Assn. of the City of New York, Inc. v. City of New York, 40 N.Y.3d 417, 427, 201 N.Y.S.3d 332, 224 N.E.3d 522).

The defendant's contention that the evidence at the suppression hearing failed to establish probable cause for his arrest is unpreserved for appellate review, since the specific arguments he now makes were not raised before the Supreme Court (see CPL 470.05[2];  People v. Rodgers, 228 A.D.3d 961, 962, 212 N.Y.S.3d 211).  In any event, the defendant's contention is without merit.  The evidence elicited at the hearing established that the police had probable cause to arrest the defendant (see People v. McLeod, 235 A.D.3d 999, 1000, 228 N.Y.S.3d 319;  People v. Rodgers, 228 A.D.3d at 962, 212 N.Y.S.3d 211).

The defendant's contention that the Supreme Court violated his Sixth Amendment right to confrontation by admitting into evidence records of a DNA analysis performed by the Office of the Chief Medical Examiner of the City of New York is unpreserved for appellate review, since defense counsel did not object to the admission of either the records or the accompanying testimony from a criminalist on the basis that their admission violated the Confrontation Clause (see CPL 470.05[2];  People v. Bostic, 236 A.D.3d 1051, 1054, 230 N.Y.S.3d 365;  People v. Espinosa, 207 A.D.3d 655, 656, 170 N.Y.S.3d 487).  In any event, “while the admission of a nontestifying analyst's DNA report violated the defendant's Confrontation Clause rights, that error was harmless beyond a reasonable doubt” (People v. Bostic, 236 A.D.3d at 1054, 230 N.Y.S.3d 365 [citation omitted];  see People v. Martinez, 165 A.D.3d 1288, 1289, 86 N.Y.S.3d 143).  The testimony of the testifying criminalist that he performed his own independent analysis and reached his own conclusions demonstrated that he “was not functioning merely as ‘a conduit for the conclusions of others' ” (People v. Bostic, 236 A.D.3d at 1054, 230 N.Y.S.3d 365, quoting People v. Austin, 30 N.Y.3d 98, 105, 64 N.Y.S.3d 650, 86 N.E.3d 542).  Thus, although erroneously admitted, the report was cumulative, since the testifying criminalist reached the same conclusions after analyzing the raw data (see People v. Rawlins, 10 N.Y.3d 136, 156, 855 N.Y.S.2d 20, 884 N.E.2d 1019;  People v. Bostic, 236 A.D.3d at 1054, 230 N.Y.S.3d 365;  People v. Martinez, 165 A.D.3d at 1289, 86 N.Y.S.3d 143).

The defendant's contention that he was deprived of a fair trial by various comments made by the prosecutor during summation and by certain questions asked by the prosecutor on cross-examination is mostly unpreserved for appellate review, as, with respect to a majority of the challenged comments and questions, the defendant failed to object to the comments, made only general objections, failed to request curative instructions, and did not timely move for a mistrial on the specific grounds now claimed (see CPL 470.05[2];  People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89;  People v. Balls, 69 N.Y.2d 641, 642, 511 N.Y.S.2d 586, 503 N.E.2d 1017;  People v. Miller, 229 A.D.3d 724, 725–726).  In any event, the challenged comments and questions either were fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564) or, to the extent they were improper, were not so pervasive or egregious as to have deprived the defendant of a fair trial (see People v. Bensabeur, 225 A.D.3d 891, 207 N.Y.S.3d 666).

Contrary to the defendant's contention, the record shows that his waiver of the right to counsel and his decision to proceed pro se were unequivocal, knowing, voluntary, and intelligent (see People v. Dixon, 42 N.Y.3d 609, 225 N.Y.S.3d 615, 250 N.E.3d 625;  People v. Blue, 42 N.Y.3d 584, 225 N.Y.S.3d 622, 250 N.E.3d 632).

IANNACCI, J.P., MILLER, DOWLING and LOVE, JJ., concur.