People v LaDuke
Appellate Division, Third Department
June 23, 2016
2016 NY Slip Op 04978 [140 AD3d 1467]
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 3, 2016
Richard V. Manning, Parishville, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchely of counsel), for respondent.
Lynch, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered January 21, 2014, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal possession of a weapon in the fourth degree.
Jacob LaDuke, defendant‘s brother, was arrested for gun-related crimes in the early morning hours of March 14, 2013. Later that morning, police staked out the apartment where defendant and LaDuke resided. After defendant carried a black duffel bag from the apartment and placed it in his vehicle, he was apprehended. As relevant to defendant‘s charges, a search revealed that the duffel bag contained a loaded Glock 17 pistol and his vehicle contained a set of metal knuckles. During his ensuing police interview, defendant maintained that the pistol belonged to LaDuke and that, upon learning that LaDuke had been arrested, he attempted to bring the pistol to the police station and surrender it. Following a jury trial, defendant was convicted of criminal possession of a weapon in the second degree and criminal possession of a weapon in the fourth degree. Defendant appeals.
We affirm. Initially, we disagree with defendant that his conviction for criminal possession of a weapon in the second degree was against the weight of the evidence. As relevant to the challenged conviction, a person is guilty of criminal possession of a weapon in the second degree when “such person possesses any loaded firearm” outside of his or her home or place of business (
A different verdict would not have been unreasonable given defendant‘s trial testimony and, thus, we must “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Novick, 126 AD3d 1134, 1134 [2015] [internal quotation marks and citations omitted], lv denied 25 NY3d 1075 [2015]; accord People v Fournier, 137 AD3d 1318, 1319 [2016]). Dean Shedd testified that, in early March 2013, he sold a Glock 17 pistol to defendant in Vermont. Shedd testified that defendant identified himself as Sam Connors during their interactions and an envelope addressed to Sam Connors was found in defendant‘s vehicle. Also on March 3, 2013, defendant‘s vehicle made a round trip to Vermont and phone records established that Shedd corresponded with defendant‘s phone via text messages. With respect to the event precipitating LaDuke‘s arrest, Nicholas Mackiewicz testified that, on March 14, 2013, LaDuke and defendant threatened him while brandishing weapons. LaDuke was pulled over on Oak Street, near Mackiewicz‘s residence, and arrested. Although defendant was not arrested until later that day, police stopped defendant‘s vehicle on the same street around the time of LaDuke‘s arrest. At trial, LaDuke corroborated parts of Mackiewicz‘s account and testified that defendant owned the pistol. Although LaDuke‘s mother testified to his untruthfulness and both LaDuke and Mackiewicz admitted that they were under the influence of drugs during the events to which they testified, granting deference to the jury‘s credibility determinations, the jury‘s verdict convicting defendant of criminal possession of a weapon in the second degree was not against the weight of the evidence (see People v Alls, 117 AD3d at 1192; People v Curry, 85 AD3d at 1211; People v Vargas, 60 AD3d 1236, 1238-1239 [2009], lv denied 13 NY3d 750 [2009]; People v Myers, 265 AD2d 598, 600 [1999]).
We are unpersuaded by defendant‘s further contention that he was deprived of a fair trial based on County Court‘s alleged errors. Initially we find unpreserved defendant‘s assertion that the court violated the general rule governing the admissibility of scientific evidence formulated in Frye v United States (293 F 1013 [1923]) by allowing evidence obtained from a license plate reader without a showing of general acceptance in the scientific community, inasmuch as he failed to object to the evidence on this ground (see
Nor did County Court err in handling two jury notes.
We also find that defendant received the effective assistance of counsel. During jury selection, County Court stated that “[t]he grand jury is a group of citizens very similar to you that . . . made a decision as to whether there is a probability that this defendant committed the acts charged.” Defense counsel did not err in failing to object, because, when considered as a whole, together with the court‘s instruction immediately thereafter that the jury could not “consider the fact that [defendant has] been indicted as any evidence of guilt” and that the indictment “has no bearing on whether [defendant is] guilty or not,” the instruction was not likely to confuse the jury as to its role and the proper burden of proof at trial (see
Further, although defense counsel failed to object to the People‘s improper bolstering of Shedd‘s testimony identifying defendant as the buyer of the pistol, such failure did not constitute the ineffective assistance of counsel. It is well settled that “testimony regarding pretrial out-of-court photographic identification . . . constitutes improper bolstering of trial testimony and is prohibited, except where defendant opens the door” (People v Allah, 57 AD3d 1115, 1118 [2008], lv denied 12 NY3d 780 [2009]; see People v Lindsay, 42 NY2d 9, 12 [1977]; People v Rivera, 31 AD3d 1060, 1061 [2006], lv denied 7 NY3d 869 [2006]). Here, defense counsel opened the door during his opening statement by describing defendant and LaDuke as “basically mirror images of each other.” Therefore, it was proper for the People to submit evidence that Shedd identified defendant in a photo array and that, when given a separate photo array containing LaDuke‘s picture, he did not recognize any photographs (see People v Allah, 57 AD3d at 1118; People v Heckstall, 45 AD3d 907, 909 [2007], lv denied 10 NY3d 766 [2008]; People v Rivera, 31 AD3d at 1061; People v Sanders, 224 AD2d 556, 556-557 [1996], lv denied 88 NY2d 941 [1996]). Also, as defense counsel referred to the photo arrays in his closing argument, we cannot say that there was no strategic or legitimate reason for opening the door (see People v Benevento, 91 NY2d at 712-713; People v Allah, 57 AD3d at 1118).
However, although the door had been opened to evidence that Shedd did not confuse defendant with LaDuke, it was improper bolstering for the People to submit the testimony of
Defendant was not denied the effective assistance of counsel when defense counsel failed to move for a trial order of dismissal on the ground that there was legally sufficient evidence to support his convictions (see People v Caban, 5 NY3d 143, 154-155 [2005]; People v Tolliver, 93 AD3d 1150, 1151 [2012], lv denied 19 NY3d 968 [2012]). We also find that defendant failed to demonstrate the lack of strategic explanation for defense counsel‘s decision not to publish to the jury a video of defendant‘s police interview or in not objecting to a jury charge regarding the voluntariness of defendant‘s statement, especially given the numerous inconsistencies and contradictions made by defendant during the interview (see People v Benevento, 91 NY2d at 712-713; People v Wheeler, 124 AD3d 1136, 1138-1139 [2015], lv denied 25 NY3d 993 [2015]). Further, to the extent that defense counsel should have objected to the submission of certain evidence or to certain comments during the prosecutor‘s opening and closing statements, we find that, viewing the record as a whole, defense counsel “pursued a consistent, cogent theory of defense” and otherwise provided defendant with the effective assistance of counsel (People v Clarke, 110 AD3d 1341, 1346 [2013], lv denied 22 NY3d 1197 [2014]; see People v Lapi, 105 AD3d 1084, 1086-1088 [2013], lv denied 21 NY3d 1043 [2013]). Defendant‘s remaining contentions have been examined and found to be without merit.
McCarthy, J.P., Egan Jr., Devine and Mulvey, JJ., concur. Ordered that the judgment is affirmed.