Seymour W. James, Jr., The Legal Aid Society, New York
(Harold V. Ferguson, Jr. of counsel), for appellant.
Gaetano D'Attore, appellant pro se.
D. Clark, District Attorney, Bronx (Ryan P. Mansell of
counsel), for respondent.
Acosta, P.J., Richter, Feinman, Webber, Kahn, JJ.
Supreme Court, Bronx County (Cassandra M. Mullen, J.),
rendered July 1, 2010, as amended February 28 and November
16, 2011, convicting defendant, after a nonjury trial, of
criminal possession of a weapon in the second degree (three
counts), criminal possession of a weapon in the third degree
(two counts), unlawful possession of pistol ammunition (seven
counts), unlawful possession of rifle ammunition (two
counts), unlawful possession of handcuffs, criminal
possession of stolen property in the fifth degree and
endangering the welfare of a child (two counts), and
sentencing him, as a second felony offender, to an aggregate
term of 14 years, unanimously affirmed.
court providently exercised its discretion in declining to
impose any sanction for the inadvertent destruction by the
police of three pistols recovered from defendant's house.
Due to a clerical error, the weapons were mischaracterized as
unconnected with any pending case and thus subject to being
destroyed. Despite proper disclosure by the People, long
before the pistols were destroyed, defendant never availed
himself of the opportunity to examine or test the firearms,
and it was not until the destruction was discovered during
trial that defendant moved to dismiss the charges or
expressed an interest in performing independent tests. Under
such circumstances, "defendant forfeited whatever right
he had to demand production of the [pistols] and,
consequently, he cannot complain about the People's
failure to preserve [them]" (People v Allgood,
70 N.Y.2d 812, 813 ; see also People v Aponte,
240 A.D.2d 317');">240 A.D.2d 317 [1st Dept 1997], lv denied 91 N.Y.2d
868 ). In any event, even if the court should have
expressly "charged" itself that, like a jury,
"it may draw an inference in defendant's
favor" (People v Handy, 20 N.Y.3d 663, 669
), we find any error to be harmless, particularly in
the context of a nonjury trial.
court properly denied defendant's suppression motion.
There is no basis for disturbing the court's credibility
determinations regarding the circumstances of defendant's
wife's consent to searches of the house in which she
jointly resided with defendant. The evidence established that
defendant's wife had both actual and apparent authority
to consent to the search of the entire house, and there was
no indication that defendant had exclusive access to the
unlocked attic and basement areas (see People v
Williams, 278 A.D.2d 150');">278 A.D.2d 150 [1st Dept 2000], lv
denied 96 N.Y.2d 764');">96 N.Y.2d 764 ).
reject defendant's challenges to the sufficiency or
weight of the evidence supporting his convictions for
possessing the three pistols found during the final search of
his house, conducted after defendant was already in custody
on the other charges in this case (see People v
Danielson, 9 N.Y.3d 342, 348-349 ). There is no
basis for disturbing the court's credibility
determinations in this regard. The evidence supports the
conclusion that defendant carefully concealed these weapons
in his house, as a result of which they were not discovered
during the first two searches. Defendant's far-fetched
theory that an estranged relative planted the weapons in
defendant's house in his absence in order to worsen his
legal troubles is unsupported by the evidence.
there was evidence that, while in custody, defendant
contacted a relative and asked her to abandon a certain bag
at a police station, anonymously, and without looking in it
or giving the police any information, we conclude that the
exemption for voluntary surrender of weapons (Penal Law
§ 265.20[a][f]) did not apply, and the court was not
required to "charge itself" on this exemption.
There was no reasonable view of the evidence that
defendant's conduct satisfied the requirements of this
exemption. In particular, the exemption requires that the
surrender be in accordance with terms and conditions
established by the police (such as an amnesty program).
court providently exercised its discretion in denying
counsel's request for a third CPL article 730
examination, where, notwithstanding his mental illness,
defendant had already been found competent twice, there was
no indication of a change in his condition, and the
court's interactions with defendant showed that he
understood the proceedings (see People v Morgan, 87
N.Y.2d 878 ).
perceive no basis for ...