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People v. Boyd

Supreme Court of New York, First Department

June 13, 2017

The People of the State of New York, Respondent,
v.
Mark Boyd, Defendant-Appellant.

         Defendant 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 imposing sentence.

          Marianne Karas, Thornwood, for appellant.

          Darcel 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.

          TOM, J.

         The 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 [2006]), a scenario to which defendant was not entitled. Defendant's other arguments are either unpreserved or meritless.

         Shortly 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 ground."

         Defendant 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.

         Defendant 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.

         The 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.

         One of 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.

         At the 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.

         After 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.

         The 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 rifle.

         The 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.

         Whether 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 [2012]). 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[3][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).

         Further, "[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 [1988][nullification "is not a legally sanctioned function of the jury and should not be encouraged by the court"], cert denied 489 U.S. 1053 [1989]).

         The 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.

         Stated 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 ...


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