THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v ANTHONY F. PINKNEY, Appellant.
Supreme Court, Appellate Division, Third Department, New York
935 N.Y.S.2d 374
Stein, J.
Lewan Leslie and his fiancée, Lakya Pinkney, were at their home together when defendant, Pinkney‘s father, contacted Pinkney on her mobile telephone. Leslie heard defendant screaming obscenities and threatening Leslie, and stating that he was coming to their house to fight him. Leslie told his brother, who was also in the home, about the call and they each called the police. Leslie then saw defendant‘s son (Pinkney‘s brother) creeping around the steps at the front of the house with a gun in his hand. Pinkney went out to the porch and saw defendant pointing a gun at her. Defendant and his son approached the porch, while defendant allegedly waved more than one firearm and yelled at Leslie. They both walked away after a short time.
The police arrived shortly after defendant and his son left the
Defendant was subsequently indicted for criminal possession of a weapon in the third degree and menacing in the second degree. Following a Mapp hearing, County Court found that probable cause existed for the issuance of the search warrant and denied defendant‘s motion to suppress the weapon and ammunition discovered in the apartment during the execution of the warrant. After conducting a Sandoval hearing, the court denied the People permission to inquire into most of defendant‘s prior convictions, with the exception of his convictions for petit larceny and criminal sale of a controlled substance. At the conclusion of a jury trial, defendant was found guilty as charged. Defendant now appeals from the judgment of conviction.
We affirm. We are unpersuaded by defendant‘s contentions that his conviction for criminal possession of a weapon in the third degree is not supported by legally sufficient evidence or that it was contrary to the weight of the evidence. A person is guilty of criminal possession of a weapon in the third degree when “[s]uch person commits the crime of criminal possession of a weapon in the fourth degree as defined in [
Possession can be actual or constructive (see
Viewing the evidence in the light most favorable to the People, we find that it was legally sufficient to convict defendant of constructive possession of the weapon found in the apartment (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Baltes, 75 AD3d 656, 658 [2010], lv denied 15 NY3d 918 [2010]; People v Somerville, 72 AD3d 1285, 1286 [2010]). Likewise, even if a different verdict would not have been unreasonable, when we view the evidence in a neutral light and accord appropriate deference to the jury‘s credibility determinations, we conclude that the verdict was not against the weight of the credible evidence (see People v Romero, 7 NY3d 633, 643-644 [2006]; People v Bleakley, 69 NY2d at 495; People v Baltes, 75 AD3d at 658).
We also reject defendant‘s contentions that County Court improperly denied his motion to suppress the revolver because the warrant was not supported by probable cause or, in the alternative, because the temporary seizure of his apartment was illegal. It is well settled that, in order to establish probable cause for the issuance of a search warrant, the warrant application must demonstrate that there is “sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place” (People v Church, 31 AD3d 892, 894 [2006], lv denied 7 NY3d 866 [2006] [internal quotation marks and citations omitted]). Here, the application clearly indicates that the police believed that the weapon allegedly used by defendant at Leslie‘s residence might be located at the apartment. The application, supported by sworn witness statements, sets forth the details of the incident wherein defendant and his son both brandished a weapon and threatened Leslie, as well as defendant‘s subsequent arrest outside his apartment just after he exited therefrom. Viewing all of the facts and circumstances
With regard to the temporary seizure of the apartment prior to the issuance of the search warrant, the police secured the residence and performed only a limited security sweep of the apartment to ensure that there was no one inside (see People v Arnau, 58 NY2d 27, 34-35 [1982], cert denied 468 US 1217 [1984]; People v Binns, 299 AD2d 651, 653 [2002], lv denied 99 NY2d 612 [2003]). Notwithstanding the eight-hour delay in obtaining the search warrant, inasmuch as the police merely secured—but did not search—the apartment until after the warrant was obtained, suppression of the weapon was not required (see People v Binns, 299 AD2d at 653). In addition, because the weapon was ultimately seized pursuant to a valid search warrant, it was admissible as “the product of an independent source entirely free and distinct from [any alleged] proscribed police activity” (People v Arnau, 58 NY2d at 35; see People v Binns, 299 AD2d at 653). Thus, we find no error in County Court‘s denial of defendant‘s motion to suppress.
Defendant also argues that County Court erred in failing to excuse a prospective juror who questioned her own ability to be impartial and that he was denied the effective assistance of counsel due to counsel‘s failure to object to that juror. In response to questioning by the court, the subject juror indicated that she had a cousin with a history of drug usage who had been convicted of a crime committed while under the influence of drugs and that she was not sure whether the cousin‘s issues would impact her ability to be impartial. After County Court explained that “drug usage” was not an issue in defendant‘s case, the prospective juror stated that her previous concern would not be a problem. Contrary to defendant‘s contention, we are of the view that the court‘s statement was accurate and that the juror‘s response provided the court with the requisite assurance of impartiality; therefore, removal of the juror was not required (see People v Chambers, 97 NY2d 417, 419 [2002]; People v Johnson, 94 NY2d 600, 614 [2000]; People v McLean, 24 AD3d 1110, 1111 [2005]).
Nor was defense counsel‘s failure to object to this juror “sufficiently egregious and prejudicial” so as to deprive defendant of the effective assistance of counsel (see People v Caban, 5 NY3d 143, 152 [2005]). A counsel‘s decision to challenge a potential juror is a tactical one that this Court will not typically second-
Defendant‘s remaining contentions, to the extent that they have not been specifically addressed herein, have been considered and are found to be without merit.
Spain, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the judgment is affirmed.