Opinion
851 KA 16-02105
12-23-2022
The PEOPLE of the State of New York, Respondent, v. Juan B. TORRES, Defendant-Appellant.
MICHAEL J. PULVER, NORTH SYRACUSE, FOR DEFENDANT-APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
MICHAEL J. PULVER, NORTH SYRACUSE, FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and endangering the welfare of a child (§ 260.10 [1]), arising from a dispute between defendant and his girlfriend during which defendant possessed an assault weapon in an apartment with five children present. We affirm.
Defendant contends in his main brief that the indictment is jurisdictionally defective with respect to the count of criminal possession of a weapon in the second degree because, while the indictment specified that the loaded firearm was an assault weapon, specifically a particular semiautomatic rifle, the indictment failed to also allege that the semiautomatic rifle did not fall into one of the exemptions from the definition of an assault weapon set forth in Penal Law § 265.00 (22) (g). We reject that contention.
"In order to determine whether a statute defining a crime contains ‘an exception that must be affirmatively pleaded as an element in the accusatory instrument’ or ‘a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial,’ [a court] must look to the language of the statute itself" ( People v. Tatis , 170 A.D.3d 45, 47, 95 N.Y.S.3d 160 [1st Dept. 2019], lv denied 33 N.Y.3d 981, 101 N.Y.S.3d 235, 124 N.E.3d 724 [2019], quoting People v. Santana , 7 N.Y.3d 234, 236, 818 N.Y.S.2d 842, 851 N.E.2d 1193 [2006] ; see People v. Kohut , 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312 [1972] ). "If the defining statute contains an exception, the [accusatory instrument] must allege that the crime is not within the exception" ( Kohut , 30 N.Y.2d at 187, 331 N.Y.S.2d 416, 282 N.E.2d 312 ). "Legislative intent to create an exception [that must be affirmatively pleaded] has generally been found when the language of exclusion is contained entirely within a Penal Law provision" ( Santana , 7 N.Y.3d at 237, 818 N.Y.S.2d 842, 851 N.E.2d 1193 ). Conversely, "the general rule [is] that qualifying language found outside the text of a relevant Penal Law provision is in the nature of a ‘proviso’ " ( People v. Davis , 13 N.Y.3d 17, 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009] ) and is therefore "generally ... a matter for the defendant to raise in defense" ( Kohut , 30 N.Y.2d at 187, 331 N.Y.S.2d 416, 282 N.E.2d 312 ; see Santana , 7 N.Y.3d at 236-237, 818 N.Y.S.2d 842, 851 N.E.2d 1193 ; Tatis , 170 A.D.3d at 47, 95 N.Y.S.3d 160 ). Ultimately, "[t]he main goal of the interpretative rules governing exceptions and provisos is to discover the intention of the enacting body" ( Davis , 13 N.Y.3d at 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 ).
Here, the provision defining criminal possession of a weapon in the second degree, as charged in this case, provides that a person is guilty of that offense when "such person possesses any loaded firearm" except "if such possession takes place in such person's home or place of business" ( Penal Law § 265.03 [3] ). Beyond the "home or place of business" exception, which "is contained entirely within" that provision ( Santana , 7 N.Y.3d at 237, 818 N.Y.S.2d 842, 851 N.E.2d 1193 ), section 265.03 (3) contains no other exceptions in the language of the provision itself. Rather, the definitional provisions contained elsewhere in the Penal Law define "firearm" as including an "assault weapon" ( § 265.00 [3] [e] ), which is a defined term referring to weapons with particular characteristics (see § 265.00 [22] [a]-[f] ) but specifically exempting certain weapons with other characteristics or conditions (see § 265.00 [22] [g] ).
The qualifying language providing exemptions from the definition of an assault weapon is thus "found outside the text of [the] relevant Penal Law provision" defining the subject offense of criminal possession of a weapon in the second degree ( Davis , 13 N.Y.3d at 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 ; see People v. Webb , 172 A.D.3d 920, 920-921, 100 N.Y.S.3d 66 [2d Dept. 2019], lv denied 34 N.Y.3d 939, 109 N.Y.S.3d 736, 133 N.E.3d 441 [2019] ). Inasmuch as "the exemptions in Penal Law § [265.00 (22) (g)] are found outside the particular Penal Law provisions to which they apply" ( Tatis , 170 A.D.3d at 49, 95 N.Y.S.3d 160 ), the exemptions from the definition of an assault weapon operate as "proviso[s] that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial" ( Santana , 7 N.Y.3d at 236, 818 N.Y.S.2d 842, 851 N.E.2d 1193 ; see Webb , 172 A.D.3d at 920-921, 100 N.Y.S.3d 66 ; cf. Richard A. Greenberg et al., New York Criminal Law § 33:3 [4th ed 6A West's NY Prac Series, Oct. 2022 Update]). "As a matter of ‘common sense and reasonable pleading’ " ( Santana , 7 N.Y.3d at 237, 818 N.Y.S.2d 842, 851 N.E.2d 1193, quoting People v. Devinny , 227 N.Y. 397, 401, 125 N.E. 543 [1919] ), we conclude that "the Legislature could not reasonably have intended the People to [plead and] negate the existence of each of the myriad" circumstances in which a weapon may have characteristics or conditions exempting it from the definition of an assault weapon in every accusatory instrument charging a relevant offense of criminal possession of a weapon in the second degree ( Davis , 13 N.Y.3d at 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 ; see Santana , 7 N.Y.3d at 237, 818 N.Y.S.2d 842, 851 N.E.2d 1193 ). Indeed, "to require the People to plead and negate the existence of [each exemption from the assault weapon definition] would require them to go to ‘intolerable lengths,’ " and "[t]hese efforts would serve ‘[n]o useful purpose of narrowing issues or giving notice,’ but would merely give rise to ‘technicalitie[s that] could be used belatedly to stifle an otherwise viable prosecution’ " ( Davis , 13 N.Y.3d at 32, 884 N.Y.S.2d 665, 912 N.E.2d 1044 ; see Kohut , 30 N.Y.2d at 191, 331 N.Y.S.2d 416, 282 N.E.2d 312 ; Devinny , 227 N.Y. at 401, 125 N.E. 543 ). We thus conclude that the indictment is not jurisdictionally defective because, contrary to defendant's assertion, the People were not required to affirmatively plead in the indictment that the semiautomatic rifle did not fall into one of the exemptions from the definition of an assault weapon set forth in Penal Law § 265.00 (22) (g) (see Webb , 172 A.D.3d at 920-921, 100 N.Y.S.3d 66 ).
Next, defendant failed to preserve for our review his contention in his main brief that the evidence is legally insufficient to support the conviction of criminal possession of a weapon in the second degree inasmuch as his motion for a trial order of dismissal was not " ‘specifically directed’ at the alleged error" now raised on appeal ( People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ) and he did not raise the alleged shortcoming in the evidence now asserted on appeal "at any subsequent time when [County Court] had an opportunity of effectively changing" its ruling denying that motion ( CPL 470.05 [2] ).
Defendant contends in his main and pro se supplemental briefs that the verdict with respect to the count of criminal possession of a weapon in the second degree is against the weight of the evidence, and further contends in his main brief that the verdict with respect to the count of endangering the welfare of a child is also against the weight of the evidence. We reject those contentions. Even assuming, arguendo, that a different verdict would not have been unreasonable, we conclude that, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). " ‘Where, as here, witness credibility is of paramount importance to the determination of guilt or innocence,’ we must afford great deference to the fact-finder's opportunity to view the witnesses, hear their testimony and observe their demeanor" ( People v. Friello , 147 A.D.3d 1519, 1520, 47 N.Y.S.3d 620 [4th Dept. 2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ), and we conclude that the jury properly considered the issues of credibility, including the inconsistencies in the witnesses’ testimony, and that there is no basis for disturbing its determinations (see People v. Tripp , 177 A.D.3d 1409, 1410, 113 N.Y.S.3d 432 [4th Dept. 2019], lv denied 34 N.Y.3d 1133, 118 N.Y.S.3d 534, 141 N.E.3d 490 [2020] ).
Defendant failed to preserve for our review his contention in his pro se supplemental brief concerning the presentence report (see CPL 470.05 [2] ; People v. Pedro , 134 A.D.3d 1396, 1397, 21 N.Y.S.3d 653 [4th Dept. 2015] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Finally, inasmuch as defendant failed to obtain leave to appeal from the order denying his CPL 440.10 motion, his contentions in his pro se supplemental brief concerning the denial of that motion are not properly before us (see People v. Loiz [Appeal No. 2], 175 A.D.3d 872, 873, 107 N.Y.S.3d 527 [4th Dept. 2019] ; People v. Fuller , 124 A.D.3d 1394, 1395, 998 N.Y.S.2d 554 [4th Dept. 2015], lv denied 25 N.Y.3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015] ).