THE PEOPLE OF THE STATE OF NEW YORK v. MARCEL PERRY (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 10, 2026

Appeals (1) from a judgment of the Supreme Court (Roger McDonough, J.), rendered May 26, 2023 in Albany County, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree, and (2) by permission, from an order of said court, entered June 26, 2024 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In September 2021, defendant fled the scene of an early morning shooting in the City of Albany.  The evidence, including a surveillance video, showed that he ran across a four-lane street, entered the driver's seat of a parked sedan and quickly made a U-turn across two lanes of traffic.  In one motion, the vehicle continued on by turning left – effectively making a rapid 270–degree turn through a green traffic signal, all at a high rate of speed.  A second vehicle immediately followed.  Police were able to stop the second vehicle, which had been trailing closely behind defendant, at a subsequent traffic signal.  Although defendant was stopped long enough for police to record his license plate number, after police shouted, “turn off the car,” he ultimately continued through the intersection.  Minutes later, another officer recognized the license plate number as being associated with defendant and was able to lead police to defendant's residence on the other side of the city, where defendant remained in his car that was parked on the street.  When officers approached defendant, he fled on foot, leading police on a brief chase before he surrendered and was arrested.  While it was ultimately determined that defendant was not responsible for the shooting, attendant to this incident police located and seized a loaded weapon in his vehicle.¹  Defendant was charged by indictment with one count of criminal possession of a weapon in the second degree.

Before trial, defendant moved to suppress evidence obtained from law enforcement's stop of his vehicle.  After a hearing, Supreme Court denied the motion, concluding that police had reasonable suspicion of criminal activity to justify pursuing defendant because they observed him making an illegal U-turn at a high rate of speed and because he refused to stop after police attempted to pull over his vehicle.

Also before trial, the parties and Supreme Court agreed to a Sandoval comprise, wherein the People were permitted to inquire generally as to whether defendant had unspecified prior felony convictions from certain dates, but could not ask any specific questions about the nature of these convictions.  During the trial, when defendant was asked about whether he had been convicted of a felony in 2007, he responded “[y]es, a nonviolent one.”  After a sidebar, the court determined that defendant had opened the door to further questions about this conviction, and allowed the People to ask whether it had been for criminal possession of a weapon in the third degree.  The jury ultimately returned a guilty verdict, and defendant was sentenced, as a second felony offender, to a prison term of 13 years, to be followed by five years of postrelease supervision.

Defendant subsequently moved, pro se, pursuant to CPL 440.10, to vacate the conviction, arguing, among other things, that his trial counsel was ineffective.  Supreme Court denied the motion without a hearing.  Defendant appeals from the judgment of conviction and, by permission, the denial of his CPL article 440 motion.

Initially, we reject defendant's arguments that the verdict is not supported by legally sufficient evidence or is against the weight of the evidence.  To assess the legal sufficiency of a jury verdict, “we view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v. Cokely, 249 AD3d 1329, 1330 [3d Dept 2026] [internal quotation marks and citations omitted];  see People v. Danielson, 9 NY3d 342, 349 [2007] ).  To determine whether a verdict is against the weight of the evidence we must “determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then [we] must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” (People v. Moore, 223 AD3d 1085, 1086–1087 [3d Dept 2024] [internal quotation marks, brackets and citations omitted], lv denied 41 NY3d 1003 [2024];  see People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ).  As relevant here, “[a] person is guilty of criminal possession of a weapon in the second degree when ․ such person possesses any loaded firearm” (Penal Law § 265.03[3] ).²  “ ‘Possession,’ as part of the forbidden act, includes the Penal Law definitional component of ‘voluntary act,’ which incorporates the attribute of awareness of the possession or control” (People v. Saunders, 85 N.Y.2d 339, 341 [1995] [internal quotation marks and brackets omitted], quoting Penal Law § 15.00[2];  see also People v. Worthington, 150 AD3d 1399, 1401–1402 [3d Dept 2017], lv denied 29 NY3d 1095 [2017] ).

We have no difficulty rejecting defendant's argument that a rational jury could not have found that he was aware of the weapon stored between his seat and the center console.  Defendant does not dispute that he was driving the sedan in question moments before he ran from police, and the uncontradicted evidence shows that the weapon was discovered in defendant's vehicle shortly after he fled.  Under these circumstances, the presence of a firearm in defendant's automobile was “presumptive evidence” that he possessed the weapon (Penal Law § 265.15[3] ).  Taken together with the DNA evidence connecting him to the weapon and viewing the evidence in the light most favorable to the prosecution, there was ample proof that defendant knowingly possessed the weapon in violation of Penal Law § 265.03(3) (see People v. Barnes, 197 AD3d 977, 978 [4th Dept 2021], lv denied 37 NY3d 1058 [2021];  People v. Kalabakas, 183 AD3d 1133, 1140 [3d Dept 2020], lv denied 35 NY3d 1067 [2020];  see also People v. Cotto, 231 AD3d 1356, 1359–1360 [3d Dept 2024], lv denied 43 NY3d 962 [2025] ).

Nor do we agree with defendant that the verdict is against the weight of the evidence.  Although a different verdict would not have been unreasonable given defendant's testimony that he had permitted a friend to borrow his car before the shooting incident and that he was unaware that a gun had been left in the vehicle, we decline to disturb the jury's decision to discredit this version of events (see People v. Kabia, 190 AD3d 1105, 1107 [3d Dept 2021];  People v. Smith, 177 AD3d 1190, 1190–1191 [3d Dept 2019], lv denied 34 NY3d 1163 [2020] ).  Not only did defendant fail to mention this friend during his five-plus hour interview with police immediately following his arrest, but other evidence proffered at trial – including body camera footage and a photograph of the driver's seat, gun and center console – showed that the gun was readily visible from outside the car.  In light of this evidence, it strains credulity that defendant was not aware of the weapon in the vehicle.  Furthermore, defendant was a major contributor to DNA found on the gun and, while he speculates that his DNA may have transferred from a surface in his car to the gun, the People's forensic scientist testified that she “would not expect a major contributor to come from [such] a secondary transfer event.”  Thus, weighing the relative probative force of conflicting evidence and the relative strength of the inferences that may be drawn therefrom, we conclude that the weight of the evidence supports that defendant knowingly possessed the firearm recovered from his vehicle (see People v. Watts, 215 AD3d 1170, 1174 [3d Dept 2023];  People v. Ruffin, 191 AD3d 1174, 1178 [3d Dept 2021], lv denied 37 NY3d 960 [2021] ).

Turning to defendant's suppression argument, it is well established that “[a]utomobile stops are lawful only when based on probable cause that a driver has committed a traffic violation;  when based on a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime;  or, when conducted pursuant to nonarbitrary, nondiscriminatory, uniform highway traffic procedures” (People v. Brown, 248 AD3d 1415, 1416–1417 [3d Dept 2026] [internal quotation marks and citations omitted];  see People v. Hinshaw, 35 NY3d 427, 430 [2020] ).  “Reasonable suspicion is that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand” (People v. Messano, 41 NY3d 228, 232 [2024] [internal quotation marks and citation omitted];  accord People v. Graham, 233 AD3d 1361, 1366 [3d Dept 2024], lv denied 43 NY3d 944 [2025] ).  A stop based on reasonable suspicion will be upheld if the officer intruding on the individual's freedom of movement “can point to specific and articulable facts which, along with any logical deductions, reasonably prompted the intrusion” (People v. Cleveland, 44 NY3d 8, 12 [2025] [internal quotation marks, brackets and citations omitted];  see People v. Cooper, 196 AD3d 855, 856 [3d Dept 2021], lv denied 37 NY3d 1160 [2022] ).  The suppression court's factual findings “are entitled to great weight, and generally will not be disturbed absent a basis in the record for finding that the court's resolution of credibility issues was clearly erroneous” (People v. Brown, 248 AD3d at 1417, quoting People v. Calafell, 211 AD3d 1114, 1119 [3d Dept 2022], lv denied 39 NY3d 1077 [2023] ).

We see no basis to disturb Supreme Court's suppression findings in this case.  During the suppression hearing, the People proffered the testimony of the police officer who initiated the pursuit of defendant.  He stated that, on the night in question, he was traveling east down Central Avenue toward Henry Johnson Boulevard in a marked police vehicle when he heard five gunshots from the direction of that intersection.  Moments later, the officer saw a dark-colored sedan complete an illegal U-turn over two lanes of westbound traffic, cross over the double yellow line into the eastbound lane of Central Avenue, and then turn left, on to Henry Johnson Boulevard.  The People proffered a video from the intersection showing a man, later identified at trial as defendant, briefly stop to talk to a woman standing next to a white SUV and then run across four lanes of Central Avenue to a vehicle.  Moments later, a dark sedan on the left edge of the video can be seen making a 270–degree turn to go down Henry Johnson Boulevard, and the woman follows in the white SUV.

The officer testified that he followed the vehicles, believing that their rapid departure from the scene of the shooting indicated that they may have been involved.  He averred that he saw both vehicles “moving at a high rate of speed and travelling in tandem” and was also concerned that the second vehicle might be chasing the first.  According to the officer, he estimated that the initial U-turn by the dark sedan was made at a speed exceeding the City's 30 mile-per-hour speed limit, and that the two cars thereafter were traveling “between 40 and 50 miles per hour.”  After he put on his emergency lights, the vehicles did not stop, but continued, making several turns through the city streets.  Eventually, a second police vehicle was able to catch up to both vehicles as they were stopped at a red traffic light.  The first officer came to a stop and, as he exited his vehicle, the dark sedan drove off.  Testimony from one of the detectives who located defendant parked outside his residence minutes later related that, while law enforcement used unmarked vehicles to approach defendant's car, they wore vests bearing an insignia with the word “police” emblazoned across their front.  The officer also stated that, as law enforcement exited their vehicles, they identified themselves as police and commanded defendant to stop, but defendant, with his hand up, started to back away, and then turned and ran.

On this record, law enforcement clearly could point to specific facts justifying the pursuit and stop of defendant.  The illegal U-turn, on its own, would have justified stopping defendant's vehicle (see Vehicle and Traffic Law § 1160[e] ).  However, as Supreme Court concluded, defendant's conduct in the aggregate provided reasonable suspicion that he had engaged in criminal activity because an ordinary, prudent and cautious individual would have inferred that defendant was involved with the shooting (see People v. Mitchell, 228 AD3d 997, 999 [3d Dept 2024], lv denied 42 NY3d 1021 [2024];  People v. Floyd, 158 AD3d 1146, 1147 [4th Dept 2018], lv denied 31 NY3d 1081 [2018];  People v. Morris, 138 AD3d 1239, 1240–1241 [3d Dept 2016], lv denied 27 NY3d 1153 [2016];  People v. Montes, 283 A.D.2d 151, 151 [1st Dept 2001], lv denied 96 N.Y.2d 904 [2001];  People v. Harris, 217 A.D.2d 666, 666 [2d Dept 1995], lv denied 87 N.Y.2d 847 [1995];  see generally People v. Jones, _ NY3d _, _, 2026 N.Y. Slip Op 01447, *4 [2026] ).

With regard to Supreme Court's decision to modify its Sandoval ruling by allowing the People to elicit testimony from defendant on cross-examination that his 2007 conviction was for weapon possession, we conclude that any error was harmless.  The evidence of defendant's guilt was overwhelming and there was not a significant probability that the jury would have found in defendant's favor had the nature of this conviction not been revealed, given the plethora of evidence discrediting defendant's claim that he did not know that there was a gun in the car and the limiting instruction provided to the jury (see People v. Doane, 212 AD3d 875, 882 [3d Dept 2023], lv denied 39 NY3d 1154 [2023];  People v. Alexander, 160 AD3d 1121, 1124 [3d Dept 2018], lv denied 31 NY3d 1144 [2018];  People v. Wongsam, 105 AD3d 980, 982 [1st Dept 2013], lv denied 21 NY3d 1012 [2013] ).

Defendant's contention that he was deprived the effective assistance of counsel is also unpersuasive because he has failed to demonstrate that he was not afforded meaningful representation (see generally People v. Benevento, 91 N.Y.2d 708, 711–713 [1998] ).  The purportedly inconsistent statements regarding the speed of defendant's sedan that defendant posits should have been used to impeach the People's witnesses during the suppression hearing are not actually contradictory and, in any event, the video of the illegal U-turn speaks for itself in terms of how quickly defendant attempted to flee the shooting.  As such, trial counsel's failure to proffer this evidence does not evince ineffective assistance because it was unlikely to lead to the inadmissibility of the weapon (see People v. Jones, 246 AD3d 1375, 1380 [4th Dept 2026], lv denied 45 NY3d 997 [2026];  People v. Lafountain, 200 AD3d 1211, 1216 [3d Dept 2021], lv denied 38 NY3d 951 [2022] ).  Defendant has not otherwise demonstrated that counsel's perceived errors lacked a strategic explanation.  Relatedly, it was not an abuse of discretion for Supreme Court to deny defendant's pro se CPL 440.10 motion without a hearing because his affidavit in support is either belied by the record or otherwise unsubstantiated (see CPL 440.30[4][d];  People v. Carota, 235 AD3d 1069, 1072 [3d Dept 2025], lv denied 43 NY3d 962 [2025];  People v. Hooker, 230 AD3d 1465, 1469 [3d Dept 2024] ).

Finally, we decline defendant's request to reduce his sentence in the interest of justice.  Given his extensive criminal history and consistent pattern of recidivism, we do not find the sentence imposed, which is less than the maximum term of incarceration authorized by statute, to be unduly harsh or severe (see People v. Cherry, 149 AD3d 1346, 1348 [3d Dept 2017], lv denied 29 NY3d 1124 [2017];  People v. Edwards, 124 AD3d 988, 992 [2015], lv denied 25 NY3d 1201 [2015] ).  Defendant's remaining contentions have been considered and determined to be lacking merit.

Aarons, J.P., Fisher, Powers and Mackey, JJ., concur.

ORDERED that the judgment and the order are affirmed.

FOOTNOTES

1.   It is undisputed that the weapon, which was situated between the driver's seat and the center console, was visible to the police upon their observation from outside of the vehicle.

2.   The home and business exception provided for in Penal Law § 265.03(3) does not apply to defendant, who has multiple prior criminal convictions (see People v. Gibson, 240 AD3d 1054, 1056 n 1 [3d Dept 2025];  see also People v. Jones, 22 NY3d 53, 57–59 [2013] ).

Reynolds Fitzgerald, J.