People v. SloleyPeople v. Sloley
| People v Sloley |
| Decided on January 16, 2020 |
| Appellate Division, Third Department |
| Publishеd by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: January 16, 2020
109779 110085
v
Maxmillian Sloley, Appellant.
Calendar Date: December 18, 2019
Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Colangelo, JJ.
David E. Woodin, Catskill, fоr appellant, and appellant pro se.
Joseph Stanzione, District Attorney, Catskill (Denise J. Kerrigan of counsel), for respondent.
Aarons, J.
Appeals (1) from a judgment of the County Court of Greene County (Wilhelm, J.), rendered January 24, 2017, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree, unlawful fleeing from a police officer in a motor vehicle in the third degree and reckless driving, and (2) by рermission, from an order of said court, entered January 25, 2018, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In 2016, law enforcement officials pursued defendant when he fled aftеr being stopped for driving at a high rate of speed in Greene County. During the pursuit, defendant drove behind a building located at 2 Van Dyck Street and was out of the view of the chasing police officer. Defendant later reappeared but crashed into an embankment. A search of the area behind 2 Van Dyck Street was conducted and a handgun was discovered. In connection with this incident, defendant was charged in a multicount indictment with various crimes. Following a jury trial, defendant was convicted of criminal possession of a weapon in the second degree, unlawful fleeing from a police officer in a motor vehicle in the third degree and reckless driving.[FN1] County Court sentenced defendant, as a second violent felony offender, to concurrent prison terms, the greatest of which was 14 years followed by five years of postrelease supervision. Defendant, pro se, subsequently movеd pursuant to CPL 440.10 to vacate the judgment of conviction. In a January 2018 order, the court denied the motion without a hearing. These appeals ensued.
Defendant contends that the verdict with respect to his conviction of criminal possession of a weapon in the second degree was against the weight of the evidence.[FN2] As relevant here, the People were required to prove that defendant possessed "any loaded firearm" in a place other than his home or place of business (Penal Law § 265.03 [3]). "[A] defendant may be found to possess a firearm . . . through constructive possession," which requires "proof that the defendant exercised dominion оr control over the property by a sufficient level of control over the area in which the contraband is found" (People v McCoy,
At trial, a deputy sheriff with the Greene County Sheriff's Department testified that he stоpped defendant after observing him speeding. A state trooper also subsequently arrived at the traffic stop and provided assistance. While the trooper was interviewing defendant, the deputy sheriff returned to his vehicle to write a traffic ticket. Defendant then fled the scene. The deputy sheriff pursued defendant, who eventually proceeded down a dead-end street. The deputy sheriff stopped his vehicle and saw defendant drive around the rear of a building located at 2 Van Dyck street. The deputy sheriff could not see defendant when he drove behind 2 Van Dyck Street, but explained that this area had room for one vehicle and was between a fence and a wooded area. When defendant reappeared from the rear of 2 Van Dyck Street, his car subsequently became stuck in an embankment. Defendant was then removed from his car and handcuffed.
The deputy sheriff stаted that he believed defendant might have bailed from his car when he went behind 2 Van Dyck Street because it took defendant approximately one minute to drive behind 2 Van Dyck Street and then reemerge on the other side. According to the deputy sheriff, this time was "too long." The deputy sheriff testified that, as he canvassed the area, a tenant of 2 Van Dyck Street informed him that a hat, which did not belong to him, was on the premises and had not been there earlier in the day.[FN3] Another deputy sheriff, who was assigned to the canine unit, arrived at the scene and, with the assistance of a canine, discovered a handgun in the surrounding wooded area. The handgun was located apprоximately 12 to 16 feet from the hat and it appeared relatively clean and not weathered. DNA samples taken from the handgun, as well as the hat, matched defendant's DNA.
Initially, we conclude that a different result would not havе been unreasonable given that no witness testified that he or she saw defendant possessing the gun. Nevertheless, viewing the evidence in a neutral light, we cannot say that the verdict regarding the conviction of criminal possession of a weapon in the second degree was against the weight of the evidence (see People v McCoy,
Defendant contends that County Court erred in allowing the People to use part of his grand jury testimony as part of their case-in-chief. Although defendant raised an objection at trial, the specific ground of his objection differs from what he now argues on appeal. Accordingly, defendant's contention is unрreserved (see People v Osuna,
We are unpersuaded by defendant's argument that County Court errеd in sentencing him as a second violent felony offender. A person is considered a second violent felony offender "when he or she stands convicted of a violent felony and was previously convicted of a violent felony for which sentence was imposed not only before commission of the present felony, but also within 10 years before commission of the present felony" (People v Thompson,
Turning to defendant's motion to vacate the judgment of conviction, defendant argues that he received ineffective assistance of counsel based upon аdvice given by his counsel who had represented him during the grand jury stage. Specifically, defendant alleges that his counsel initially advised him, prior to testifying before the grand jury, that he did not know whether his grand jury testimony could be used at trial, and then later advised him that he did not believe so. Even assuming that such advice was given, we find that defendant's claim is belied by the record. The grand jury proceeding discloses that, immediately before defendant testified, he was made aware of the fact that his grand jury testimony could be used in a future proceeding. Defendant was also provided with a waiver of immunity, which stated that his grand jury testimony could be used against him in any investigation or legal proceeding and that he had the right to confer with his counsel prior to executing the waiver. Defendant acknowledged that he understood the contents of the waiver of immunity and executed it. Given that defendant's waiver of immunity was made knowingly and intelligently (see People v Mane,
Defendant also argues that a conflict of interest was created because the judge presiding over his trial previously served as the District Attorney when he was prosecuted on an unrelated matter. Such fact by itself, however, does not require a judge's recusal (see People v Curkendall,
Finally, defendant contended in his motion to vacate the judgment of conviction that the sentence was harsh and excessive. Such claim, however, is not a proper subject of a CPL 440.10 motion (see People v Currier,
Garry, P.J., Egan Jr., Pritzker and Colangelo, JJ., concur.
ORDERED that the judgment and order are affirmed.
Footnote 1: Defendant represented himself at trial and standby counsel was available.
Footnote 2: To the extent that defendant asserts that the еvidence was not legally sufficient to support this conviction, such assertion is unpreserved for our review because defendant did not renew his motion to dismiss at the close of all proof (see People v Henry,
Footnote 3: The People offered a portion of defendant's grand jury testimony wherein he stated that he told an investigator that it was possible that he lost a hat during the chase.
Footnote 4: Even if preserved, the claim is without merit (see People v Halm,