Seymour W. James, Jr., The Legal Aid Society, New York
(Harold V. Ferguson, Jr. of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Ellen Stanfield
Friedman of counsel), for respondent.
Friedman, J.P., Andrias, Feinman, Kapnick, Gesmer, JJ.
Supreme Court, New York County (Maxwell Wiley, J.), rendered
February 7, 2014, convicting defendant, after a jury trial,
of two counts of criminal possession of a weapon in the
second degree, and sentencing him to concurrent terms of
3½ years, unanimously affirmed.
and his nephew Joshua Flores were originally charged with
criminal possession of marijuana in the second degree, four
counts of criminal possession of a weapon in the second
degree (two charging intent to use unlawfully, and two
charging possession outside the defendant's home or place
of business), and criminal possession of a weapon in the
fourth degree, based on the presence of marijuana and
firearms in an apartment when the police executed a search
warrant there on August 10, 2010. At defendant's first
trial, the court dismissed the two counts that charged
defendant with possessing a weapon outside his home or place
of business, and the jury found defendant guilty of criminal
possession of a weapon in the fourth degree and possession of
marijuana in the second degree. The jury deadlocked on the
two remaining counts of criminal possession of a weapon in
the second degree (intent to use unlawfully). While
defendant's appeal of the conviction from the first trial
was pending, he was retried before another justice and a jury
and convicted of the two remaining counts.
appeal from the first conviction, defendant argued, inter
alia, that the trial court's preclusion of several text
message conversations retrieved from his nephew's cell
phone denied him the right to present his defense that it was
his codefendant nephew who had a drug business and possessed
the weapons in furtherance of the business. In unanimously
affirming his conviction, we found that the prosecution had
proven defendant's knowing constructive possession of the
contraband, (110 A.D.3d 456, 457 [1st Dept 2013], lv
denied 23 N.Y.3d 1066');">23 N.Y.3d 1066 ). Although we agreed with
defendant that a number of the text messages were nonhearsay
and were admissible, we held that their preclusion was
harmless error, because the two messages that were admitted
were "similar" to the others, and the additional
messages would not have affected the verdict (110 A.D.3d at
458). We held that the error "did not rise to the level
of depriving defendant of his right to present a
appeal, defendant contends that he was deprived of his
federal and state due process rights to a fair trial and to
present a defense (see generally Chambers v
Mississippi, 410 U.S. 284');">410 U.S. 284 ). Here, the trial court
denied him permission to present any of the many text
messages to the jury. It also precluded introduction of a
photograph from his nephew's cell phone showing the
nephew holding one of the firearms at issue. Additionally, it
did not allow the jury to hear of the nephew's guilty
plea to attempted possession of one of the firearms. During a
colloquy between the court and the parties' counsel,
before the jury entered, the court was informed that the
first trial court had allowed two text messages and the
photograph to be presented to the jury. The judge indicated
his disagreement with that earlier ruling, finding that none
of this evidence was relevant to refuting the charges, nor
was it exculpatory; at best, it showed that the nephew was
involved in the drug business, but it did not show that
defendant was not involved. Because this trial took place
while the first appeal was still pending, neither the parties
nor the second trial court had the benefit of our ruling that
the text messages were nonhearsay.
light of our decision in the earlier appeal, defendant now
contends it was error for the trial court to preclude
introduction of the text messages at the second trial.
Defendant contends that the text messages, the photograph,
and the nephew's admission, were critical to his defense
that his nephew was running the marijuana operation, not he.
He seeks reversal of his conviction on the basis that he was
denied his right to present a defense, in violation of his
due process rights to a fair trial.
purporting to show third-party culpability is reviewed
"in accordance with ordinary evidentiary
principles" requiring a defendant to establish that the
probative value of the evidence outweighs the potential for
undue prejudice, delay, or confusion (see People v
Powell, 27 N.Y.3d 523, 526 ). A trial court has
wide latitude to admit or preclude evidence after weighing
its probative value against any danger of confusing the main
issues, unfairly prejudicing the other side, or being
cumulative (People v Halter, 19 N.Y.3d 1046, 1051
; People v Petty, 7 N.Y.3d 277, 286 ).
The court examines the "particular circumstances"
of each case when making its rulings (People v Aska,
91 N.Y.2d 979, 981 ). It has the discretion to exclude
relevant evidence upon finding it has insufficient probative
value (see People v Primo, 96 N.Y.2d 351, 355
). Evidence must be more than of "slight, remote
or conjectural significance" (id. at 355-356
[internal quotation marks omitted]).
of third-party culpability will be excluded where it has
slight probative value but has "strong potential"
for undue prejudice, trial delay and jury confusion
(Primo, 96 N.Y.2d at 357). Upon a retrial, the
evidentiary rulings of a court of coordinate jurisdiction are
not binding on the court conducting the second trial (see
People v Nieves, 67 N.Y.2d 125, 136 ).
second trial, the trial court's ruling was not based on a
finding of whether the texts were hearsay, but rather on an
evaluation of their relevance and probative value, an issue
not addressed in defendant's earlier appeal. The court
explicitly reasoned that the text messages and photograph
only supported the claim that the nephew was a marijuana
dealer, but did not exclude defendant from culpability. It
reasonably found that none of the evidence was relevant.
Evidence of "conjectural significance" has
generally been held to be insufficiently probative to
outweigh the risks of undue prejudice to the opposing party,
confusing the issues or misleading the jury (People v
Primo, 96 N.Y.2d at 355 [internal quotation marks
omitted]; see also People v Boatwright, 297 A.D.2d
603 [1st Dept 2002], lv denied 99 N.Y.2d 533');">99 N.Y.2d 533 
[proper to exclude evidence that was irrelevant or collateral
to the issues presented at trial]). In short, the evidentiary
rulings did not constitute an improvident exercise of
discretion (see People v Davidson, 121 A.D.3d 612,
613 [1st Dept 2014], lv denied 25 N.Y.3d 988');">25 N.Y.3d 988
verdict was neither against the weight of the evidence nor
based on legally insufficient evidence (see People v
Danielson, 9 N.Y.3d 342');">9 N.Y.3d 342 ). As in the earlier
appeal, the evidence in this case was sufficient to support
the inference that defendant had dominion and control of the
apartment, and in particular over the specific room where the
contraband was found (see People v Roque, 99 N.Y.2d
50, 54 ). Accordingly, the evidence of constructive
possession was legally sufficient. The jury ...