appeals from the judgment of the Supreme Court, Bronx County
(Efrain Alvarado, J.), rendered December 18, 2013, as amended
February 26, 2014, convicting him, after a jury trial, of
criminal possession of a weapon in the third degree, and
Marianne Karas, Thornwood, for appellant.
D. Clark, District Attorney, Bronx (Emily Anne Aldridge and
Gina Mignola of counsel), for respondent.
Rolando T. Acosta, P.J., Peter Tom, Barbara R. Kapnick, Marcy
L. Kahn, Ellen Gesmer, JJ.
primary issue raised by defendant on appeal is whether the
trial court abused its discretion in granting the
People's application to dismiss the count of unlawful
possession of an air pistol or BB gun (Administrative Code of
City of New York § 10-131[b]) in an indictment that also
included charges of criminal possession of a weapon relating
to a 9 millimeter Taurus pistol. Because the BB gun count and
the weapon possession counts relating to the Taurus pistol
were noninclusory, submission of the BB gun count was not
mandatory, and the court reasonably determined that it would
"simply provide a distraction or an opportunity [for the
jury] to [compromise or] split the difference"
(People v Leon, 7 N.Y.3d 109, 114 ), a
scenario to which defendant was not entitled. Defendant's
other arguments are either unpreserved or meritless.
after 1 a.m. on June 8, 2011, while searching for a robbery
suspect, Detectives Angelo Tessitore and Ellis DeLoren were
driving south on Marion Avenue in the Bronx and spotted
defendant holding a gun in each of his hands. Detective
DeLoren testified that he had an unobstructed, well lit view
of defendant as the unmarked police vehicle approached
defendant. As the detectives drew closer, they observed
defendant make a throwing motion under a white van parked on
the street, and start to walk away. Defendant was standing
alone approximately 25 to 30 feet away from a group of
people. DeLoren then heard "two clinks hitting the
was arrested, and the two guns - a black BB gun, or air
pistol, and a 9 millimeter Taurus semiautomatic pistol with a
brown handle - were retrieved from under the van.
was charged with criminal possession of a weapon in the
second degree, two counts of criminal possession of a weapon
in the third degree, criminal possession of a weapon in the
fourth degree, and possession of ammunition in connection
with his possession of a loaded Taurus pistol. He also was
charged with unlawful possession of an air pistol or rifle
based on his possession of the BB gun.
defense theory at trial was that defendant possessed the BB
gun but not the Taurus pistol. To that end, defendant hired a
retired detective, John Bruno, who interviewed a witness -
Steve Ramsanany - who claimed that he had possessed the
Taurus pistol and that he threw it under a car when the
police approached. Ramsanany put this statement in writing.
However, when the detectives confronted him about his
statement he told them that it was a "fake" and a
"lie" and that it was defendant's idea.
Defendant told him that he would not have to testify and
would not get into trouble. When asked why he gave the
statement, Ramsanany said he was afraid of defendant, and
later sought from DeLoren his assurance that defendant would
not learn that he had recanted his statement.
defendant's friends, Adan Gil, testified that on the date
in question defendant had shown him a BB gun. Gil also
claimed that he saw a man he knew as "Harlem"
carrying a gun in his waistband that had a brown handle, and
that he saw "Harlem" throw the gun under a white
vehicle when police arrived.
end of the People's case, the court asked whether the
People intended to "par[e] down the indictment."
The prosecutor stated that he had not made a decision, and
asked if defense counsel was going to request submission of
the "pellet gun" charge, referring to the charge of
unlawful possession of an air pistol, which related to the BB
gun. Defense counsel said that he "would like to think
about it. You make the decision first." The prosecutor
replied, "I think if defense asks for it [sic] he will
get it... [I]f you know you want it, let me know."
Defense counsel said he would do so.
all of the evidence was presented, defense counsel moved to
dismiss the first four counts, relating to the Taurus pistol.
He also argued that the "only applicable count" was
the air pistol count relating to the BB gun, and asked the
court to submit that count to the jury. The People asked the
court to deny defendant's motion to dismiss, and stated,
"I am not asking you to submit the air pistol, I know
you're not hearing argument on that at this point."
The court asked whether the People "wish to dismiss it,
although defense stated [sic] they're requesting
it." The People responded, "[I]t's on the
indictment. I guess it's going to be there." The
court denied defendant's motion to dismiss the other
counts, but did not address the air pistol count further.
People later moved to dismiss the air pistol count, and
defense counsel objected, stating only that "the jury
should be allowed to consider that." The court stated
that the People "have the option... to make that
application. And it is not a lesser included, so I don't
see there is a legal reason for the [c]ourt to include it...
and were you to object I would deny it, but it is not."
Accordingly, the court granted the People's motion and
dismissed the count of unlawful possession of air pistol or
jury thus considered one count of criminal possession of a
weapon in the second degree and two counts of criminal
possession of a weapon in the third degree, all in connection
with defendant's possession of the Taurus pistol.
Defendant was ultimately convicted of criminal possession of
a weapon in the third degree, and sentenced, as a second
felony offender, to a term of two to four years.
to dismiss a count in an indictment is a matter to be decided
by the court in its discretion (People v Extale, 18
N.Y.3d 690, 692 ). As is the case here, when the
offenses are noninclusory, the submission of a less serious
count, even if there is evidence to support it, is not
mandatory; rather, it is a matter for the trial court's
discretion whether to dismiss the count (People v
Leon, 7 N.Y.3d 109 at 113, supra; see
CPL 300.40[a] ["With respect to non-inclusory
concurrent counts, the court may in its discretion submit one
or more or all thereof"]). "In exercising its
discretion, the court ha[s] to weigh competing possibilities:
Would the submission of the [less serious] count help the
jury arrive at a fair verdict, or would it simply provide a
distraction or an opportunity to split the difference?"
(People v Leon, 7 N.Y.3d at 114).
"[d]efendant, in asking for the submission of the less
serious charge, was obviously hoping that he could avoid
conviction on the more serious one" (People v
Leon, 7 N.Y.3d at 113-114). Defendant hoped that a jury
otherwise prepared to convict him for criminal possession of
a weapon in the second or third degree might - "perhaps
in an exercise of mercy, or a compromise" - convict him
on the unlawful possession of an air pistol instead. However,
as the Court of Appeals explained in Leon,
"defendant was not entitled to a chance at jury
nullification" (7 N.Y.3d at 114, citing People v
Goetz, 73 N.Y.2d 751');">73 N.Y.2d 751 [nullification "is not a
legally sanctioned function of the jury and should not be
encouraged by the court"], cert denied 489 U.S.
court providently dismissed the air pistol charge so that the
jury could not compromise by resorting to jury nullification
and merely find defendant guilty of that less serious charge.
Instead, the jury was given an opportunity to resolve any
credibility issues related to the possession of the Taurus
pistol. Had the jurors believed defendant's theory of the
case that he did not possess the Taurus pistol and
disbelieved the People's witnesses, they could have
easily acquitted defendant of all charges related to the
Taurus pistol. Since the count of criminal possession of an
air pistol was totally unrelated to the weapon charges, it
could only confuse the jurors or permit jury nullification
during jury deliberations.
another way, defendant was not prejudiced by the dismissal of
the air pistol count. Once the People presented their case
concerning the possessory counts of the Taurus pistol,
defendant's theory of the case that he did not possess
the firearm was considered by the jury. Clearly, if the
jurors determined that defendant only possessed the BB gun,
they could return a complete acquittal. Nor is it correct to
state, as does the dissent, that dismissal of the air pistol
count "removed defendant's only defense from
consideration." The fallacy of this argument is that the
charge of criminal possession of an air pistol, a
misdemeanor, is a distinct and completely separate crime and,
thus, cannot serve as a defense to the charge of possession
of the 9 millimeter pistol. It would appear that the only
reason to give both counts to the jury is to allow the jury
to exercise mercy, or a compromise, to find defendant guilty
only of criminal possession of the air pistol. Once again, no
defendant is entitled to jury nullification. Further,
defendant's defense that he did not possess the Taurus