PEOPLE v. PICART (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Barry E. Warhit, J.), rendered November 9, 2016, as amended February 15, 2017, convicting him of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a firearm, upon a jury verdict, and imposing sentence.

ORDERED that the judgment, as amended, is affirmed.

The defendant was indicted for attempted murder in the second degree and other crimes related to a June 1, 2015, shooting of the complainant in a Westchester County delicatessen.  Following a jury trial, the defendant was convicted of attempted murder in the second degree and assault in the first degree for the shooting.  The defendant was also convicted of criminal possession of a weapon in the second degree and criminal possession of a firearm for his June 22, 2015, possession of the gun that had been used in the shooting.  The gun was recovered from an apartment in which the defendant had been staying, during a search conducted with the consent of the apartment owner.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 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 second degree and criminal possession of a firearm beyond a reasonable doubt.  Contrary to the defendant's contention, the evidence was legally sufficient to establish, beyond a reasonable doubt, that he exercised dominion or control over the area in which the gun was found such that he constructively possessed the firearm (see People v. Muhammad, 16 N.Y.3d 184, 188, 920 N.Y.S.2d 760, 945 N.E.2d 1010;  People v. DeCapua, 151 A.D.3d 1746, 1747, 57 N.Y.S.3d 299;  People v. Mangarella, 190 A.D.2d 757, 757, 593 N.Y.S.2d 291;  see also Penal Law § 10.00[8] ).  Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to those crimes 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).

Contrary to the defendant's contention, the County Court providently exercised its discretion in denying his request for a missing witness charge with respect to the complainant.  The complainant, through his lawyer, refused to testify despite having been subpoenaed and was not under the People's control (see People v. Savinon, 100 N.Y.2d 192, 197–200, 761 N.Y.S.2d 144, 791 N.E.2d 401;  People v. Mobley, 77 A.D.3d 488, 489, 908 N.Y.S.2d 686;  People v. Washington, 21 A.D.3d 648, 649, 799 N.Y.S.2d 659;  People v. Mulero, 229 A.D.2d 402, 403, 644 N.Y.S.2d 650).

The defendant's contention that the County Court erred in allowing references to the gang affiliation of the complainant and another man in the delicatessen is unpreserved for appellate review (see CPL 470.05[2] ).  Moreover, the defendant partially waived this contention by affirmatively using evidence of the complainant's gang affiliation in his cross-examination of the witnesses and in summation as part of his defense strategy (see People v. Holmes, 47 A.D.3d 946, 946, 850 N.Y.S.2d 571;  People v. Blackman, 13 A.D.3d 640, 641, 789 N.Y.S.2d 57).  In any event, the defendant was not deprived of a fair trial by the admission of the challenged evidence (cf. People v. Cheatham, 158 A.D.2d 934, 935, 550 N.Y.S.2d 961), and any other error in its admission was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to the defendant's convictions (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

The defendant's contention, made in his pro se supplemental brief, that he was deprived of the effective assistance of counsel is based, in part, on matter dehors the record, and thus, constitutes a “mixed claim” of ineffective assistance of counsel (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386).  Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Benson, 164 A.D.3d 911, 912, 79 N.Y.S.3d 664;  People v. Crosby, 133 A.D.3d 681, 682, 20 N.Y.S.3d 100).

The defendant's contention, made in his pro se supplemental brief, that the County Court erred in denying his request for a Dunaway hearing (see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824) is academic, since the court suppressed the defendant's statement to police on another ground, and there were no identifications made or physical evidence seized as a result of the arrest (see generally People v. Jones, 2 N.Y.3d 235, 244, 778 N.Y.S.2d 133, 810 N.E.2d 415).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.

SCHEINKMAN, P.J., RIVERA, HINDS–RADIX and BARROS, JJ., concur.