People v. Thomas

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered November 18, 2015, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree.

In September 2014, the City of Albany Police Department commenced an investigation into defendant upon receipt of a complaint from a female victim that he had approached her in a motor vehicle and threatened her with a firearm. The victim identified defendant in a photo array and provided the police with a description of defendant’s vehicle. Shortly thereafter, police located defendant’s vehicle, executed a traffic stop and took defendant into custody for certain charges resulting from the stop. While defendant remained in custody, detectives successfully applied for and executed a search warrant on defendant’s first-floor apartment located at 202 Jefferson Street in the City of Albany wherein they seized, among other things, a semiautomatic pistol and a Taurus .38 revolver. As a result, defendant was ultimately charged in a four-count superceding indictment with two counts of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and menacing in the second degree.

Defendant thereafter moved to suppress the seized weapons on the ground that the search warrant was defective inasmuch as it failed to describe with sufficient particularity the premises to be searched. Following a hearing, County Court denied the motion. Defendant then sought a judicial subpoena duces tecum ordering the Albany Police Department to produce,

Initially, we are unpersuaded by defendant’s contention that the search warrant executed on his residence was fatally defective for failing to describe the premises to be searched with sufficient particularity. While particularity of a search warrant is certainly required, “[t]his does not mean that hypertechnical accuracy and completeness of description must be attained but rather, from the standpoint of common sense, that the descriptions in the warrant and its supporting affidavits be sufficiently definite to enable the searcher to identify the persons, places or things that the Magistrate has previously determined should be searched or seized” (People v Nieves, 36 NY2d 396 , 401 [1975] [citations omitted]; accord People v Carpenter, 51 AD3d 1149 , 1149-1150 [2008], lv denied 11 NY3d 786 [2008]). Here, the search warrant directed police officers to search “ [t]he residence of 202 Jefferson Street, Albany, NY, to include all stairways, attics, basements, yards and sheds” and specified that the residence was a “two-story brickfront apartment duplex building with a blue door.” Although the warrant was facially deficient to the extent that it failed to specify whether detectives were to search the upstairs or downstairs apartment of the two-unit duplex (see e.g. People v Mitchell, 57 AD3d 1232 , 1233 [2008], lv denied 12 NY3d 760 [2009]; People v Henley, 135 AD2d 1136 , 1136 [1987], lv denied 71 NY2d 897 [1988]), the imprecise description did not invalidate the search inasmuch as the affidavit in support of the search warrant specifically identified the apartment to be searched as “[defendant’s] residence” (see People v Wallace, 238 AD2d 807 , 808-809 [1997], lv denied 90 NY2d 865 [1997]; People v Davenport, 231 AD2d 809 , 810 [1996], lv denied 89 NY2d 921 [1996]) and, upon execution, the detectives were able “to readily ascertain and identify the target premises with reasonable and minimal

We also find unavailing defendant’s contention that he was deprived of a fair trial as a result of various instances of prosecutorial misconduct during the People’s summation. Although defendant argues that the prosecutor impermissibly shifted the burden of proof on multiple occasions, the record reflects that County Court sustained many of defendant’s objections in this regard and, where appropriate, issued timely curative instructions, reminding the jury that the People alone carried the burden of proving defendant’s guilt beyond a reasonable doubt (see People v Ressy, 141 AD3d 839 , 842-843 [2016], lv denied 28 NY3d 1030 [2016]). Further, inasmuch as

Finally, with respect to defendant’s claim that his sentence is harsh and excessive, we find no extraordinary circumstances or any abuse of discretion warranting a reduction of the sentence in the interest of justice (see People v Malloy, 152 AD3d 968 , 971 [2017]). “The mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof positive that defendant was punished for asserting his right to trial” (People v Peart, 141 AD3d 939 , 942 [2016] [internal quotation marks and citations omitted], lv denied 28 NY3d 1074 [2016]; see People v Watson, 150 AD3d 1384 , 1387 [2017], lv denied 29 NY3d 1135 [2017]). In consideration of the nature of the crime and defendant’s criminal history, which included a prior felony conviction for a weapon charge, we discern no basis upon which to reduce the sentence imposed (see People v Criss, 151 AD3d 1275 , 1281 [2017]; People v Dale, 115 AD3d 1002 , 1007 [2014]).

Garry, J.P., Devine, Aarons and Rumsey, JJ., concur.

Ordered that the judgment is affirmed.