Appeal from a judgment of the County Court of Broome County (Monserrate, J.), rendered April 15, 1987, upon a verdict convicting defendant of the crimes of burglary in the third degree, criminal possession of a weapon in the third degree (four counts) and conspiracy in the fourth degree.
The questions presented on this appeal are: (1) whether County Court properly allowed into evidence the sawed-off shotgun seized pursuant to a search warrant from a garaged Mazda automobile, (2) whether there was sufficient circumstantial evidence to sustain defendant’s conviction for possession of the shotgun, (3) whether County Court properly instructed the jury concerning accomplice testimony, and (4) whether the sentence was within the court’s discretion. In our
On the evening of September 26, 1986, Fran Paddleford and her friend, Vicky Deyo, met Frank Powers and his friend, Kenneth Horton, at a parking ramp in the City of Binghamton, Broome County. Paddleford and Powers returned to her apartment in the Village of Johnson City, Broome County. Powers slept on the couch that night and the next day Powers and Horton "moved in” to the apartment, residing there until November 1, 1986. Sherry Florence, who was Horton’s girlfriend, defendant, who was Powers’ brother, and defendant’s friend, Jeff Van Norman, became regular visitors at the apartment.
On their initial visit in the first week of October 1986, defendant and Van Norman brought with them a blue gym or duffel bag containing a 12-gauge sawed-off shotgun nicknamed "Shorty”. This shotgun was stored in Paddleford’s bedroom closet or in the trunk or front seat of Powers’ brown Pontiac automobile until November 1, 1986, when Paddleford asked Powers to leave her apartment for good. He did so and left with the sawed-off shotgun.
On November 8, 1986, Paddleford informed Detective Mike Nowak of the Johnson City Police Department of apparent burglaries and other illegal activity that she learned Powers, Van Norman, defendant and others were involved in through conversations between defendant and his friends and observations she made at her apartment during the month of October 1986. Police investigation and the reports of other visitors at Paddleford’s apartment confirmed Paddleford’s disclosures and led to the issuance and execution of search warrants and defendant’s arrest. On the evening of November 8, 1986, during the execution of a search warrant for the garage of defendant’s rented apartment, a sawed-off shotgun was seized from the trunk of an unregistered Mazda automobile.
Subsequently, defendant was indicted, along with others, and charged with four counts of criminal possession of a weapon in the third degree, two counts of burglary in the third degree and one count of conspiracy in the fourth degree. Defendant’s pretrial motion to suppress the seized shotgun was denied.
We reject defendant’s contention that the sawed-off shotgun was improperly admitted into evidence because it was not mentioned in the search warrant and therefore the police were not authorized to search the Mazda. Assuming that defendant has not waived standing to contest the seizure of the shotgun by failing to present evidence of standing at the suppression hearing, we turn to the issue of the legality of the search of the Mazda, which appears to be one of first impression in this State. The prevailing view in other jurisdictions permits the search of an automobile owned or controlled by the owner of the premises authorized to be searched by a warrant (Commonwealth v Signorine, 404 Mass 400,
The court also held that "[t]his rule applies equally to all
Contrary to defendant’s argument, we also find that there was sufficient circumstantial evidence in the record to sustain the jury’s verdict convicting defendant of criminal possession of the sawed-off shotgun. The applicable law is clear. Where the evidence on which the conviction is based is entirely circumstantial, "the conclusion of guilt must be consistent with and flow naturally from the proven facts, and that those facts viewed as a whole must exclude 'to a moral certainty’ every conclusion other than guilt” (People v Kennedy,
In the case at bar, the facts proved permitted the jury to conclude that defendant shared access and control of the shotgun with and in the company of others at the Paddleford residence and elsewhere during October 1986. Although defendant denied to the police that he had seen the weapon since the previous spring when he admittedly fired it for target practice, there was testimony that he retrieved the shotgun from the closet, held it in his hands and presented it to others to examine at the Paddleford residence. There was also testimony that the shotgun was taken with defendant and others when they went out in Powers’ Pontiac. Defendant was shown to have had some property interest in the Mazda, as he worked on it while it was in his garage as part of an arrangement to purchase it. The evidence also revealed that on Powers’ leaving the Paddleford residence on November 1, 1986, he took the shotgun with him. The jury could conclude
Additionally, a shotgun shell which could be fired from the sawed-off shotgun was found in defendant’s dresser drawer. Powers, Horton and Van Norman had no reason to hide the shotgun from defendant, and if the object was to hide the shotgun from defendant, it seems unlikely that they would have hidden it in the trunk of the car he was working on in his garage where he would surely discover it. Viewing the facts established at trial and the inferences to be drawn therefrom in the light most favorable to the People, one can reach no other conclusion but that defendant knew that the shotgun was in the Mazda trunk in his garage.
Defendant’s contention that County Court erred in failing to instruct the jury that witness Michael Karl was an accomplice as a matter of law is also without merit. The receiver of stolen property is not an accomplice unless such person played some role in the planning or execution of the theft (People v Brooks,
Finally, defendant’s argument that his sentence is harsh and excessive because his codefendants received lesser sentences than he did is rejected. A sentencing court is not required to sentence all participants in the crime the same (People v Danny G.,
Judgment affirmed. Mahoney, P. J., Weiss, Mikoll, Crew III and Harvey, JJ., concur.
Notes
Defendant’s motion to suppress was otherwise granted in part and denied in part, not here relevant as only suppression of the shotgun is at issue.