People v Belizaire
Annotate this CaseDecided on December 20, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
BETSY BARROS
PAUL WOOTEN
HELEN VOUTSINAS, JJ.
2019-06265
(Ind. No. 7181/16)
[*1]The People of the State of New York, respondent,
v
Mark Belizaire, appellant.
Patricia Pazner, New York, NY (David Fitzmaurice and Weil, Gotshal & Manges LLP [Gregory Silbert, Joshua Halpern, Shai Berman, and Megan McKinley], of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Ann Bordley of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Laura R. Johnson, J.), rendered April 24, 2019, as amended April 26, 2019, convicting him of criminal possession of a weapon in the second degree, criminal possession of forgery devices, and criminal possession of a forged instrument in the third degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing (Shawndya L. Simpson, J.), of that branch of the defendant's omnibus motion which was to controvert a search warrant.
ORDERED that the judgment, as amended, is affirmed.
After the issuance of a search warrant based upon information from a police officer and an eyewitness, the police recovered a loaded firearm, a credit card scanner, a credit card embosser, and several credit cards from the defendant's apartment.
The defendant moved, inter alia, to controvert the search warrant, and the Supreme Court denied that branch of the defendant's omnibus motion. After a jury trial, the defendant was convicted of criminal possession of a weapon in the second degree, criminal possession of forgery devices, and three counts of criminal possession of a forged instrument in the third degree. The defendant appeals.
As an initial matter, contrary to the People's contention, the defendant's contention that the search warrant was not supported by probable cause is preserved for appellate review. The defendant raised a challenge to the police officer's credibility in connection with that branch of his motion which was to suppress. The crux of the defendant's argument here is based on the police officer's credibility. Therefore, the issue is preserved for appellate review (see People v Gray, 86 NY2d 10, 19; People v Rivera, 210 AD3d 805, 806). However, contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to controvert the search warrant. The search warrant application, in combination with the testimony at the search warrant application hearing, contained sufficient factual allegations of criminal conduct [*2]to justify issuance of the search warrant (see People v Abad, 208 AD3d 892, 893-894).
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of three counts of criminal possession of a forged instrument in the third degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383; People v Bleakley, 69 NY2d 490). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those counts was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The defendant's contention that Penal Law § 265.03(3) is unconstitutional in light of the decision in New York State Rifle & Pistol Assn., Inc. v Bruen (____ US _____, 142 S Ct 2111), is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the Supreme Court (see People v Cabrera, ____ NY3d ____, 2023 NY Slip Op 05968; People v Manners, 217 AD3d 683; see also People v Baumann & Sons Buses, Inc., 6 NY3d 404, 408; People v Crum, 184 AD3d 454, 455). In any event, the defendant's contention is without merit, because the ruling in Bruen had no impact on the constitutionality of New York State's criminal possession of a weapon statutes (see People v Joyce, 219 AD3d 627, 628; People v Bryant, 219 AD3d 622, 624; People v Manners, 217AD3d at 686 ).
The parties' remaining contentions are without merit.
DILLON, J.P., BARROS, WOOTEN and VOUTSINAS, JJ., concur.
ENTER:Darrell M. Joseph
Acting Clerk of the Court
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