—[*1] White & White, New York (Diarmuid White of counsel), and Michael C. Marcus, New York, for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered February 24, 2009, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree and 26 counts of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 18½ to 22 years, modified, as a matter of discretion in the interest of justice, to the extent of directing that all sentences be served concurrently, resulting in a new aggregate term of 15 years, and otherwise affirmed.

Defendant was convicted of possessing a loaded Bushmaster AR-15 assault rifle, a weapon so deadly that the .223 caliber bullets it is capable of firing would penetrate the vests worn by New York City police officers. He was also convicted of possessing 22 high-capacity magazines, each of which held 30 rounds of such ammunition. In addition to the rifle and the ammunition feeders for it, defendant was convicted of possessing a Glock 9 millimeter automatic pistol and a knife.

The evidence at trial established that defendant kept the AR-15 assault rifle in a black bag and that when he went out of his apartment, he often brought the rifle with him, keeping it in the black bag and placing it on the floor of his car, between the front and back seats. Defendant also usually carried the Glock pistol, which he concealed in his waistband, along with two extra magazines. One of defendant's friends testified that he once saw defendant with the pistol in Penn Station. Defendant also carried a knife in his pocket.

The main witness at trial was defendant's girlfriend. She testified that, on one occasion, she found defendant in the living room of the apartment they lived in holding her sister's dog, which was not moving. When she said she wanted to take the dog to a veterinarian, defendant pointed the loaded AR-15 rifle at her, and threatened to shoot her and the dog. After a struggle over the gun, defendant calmed down. When the girlfriend went to call a veterinarian, defendant opened the freezer, removed the frozen body of the girlfriend's own dog, slammed it on the counter, and told her to take it to the veterinarian for an autopsy. When the girlfriend tried to leave the apartment, defendant pointed the rifle at her and said that he would shoot her if she left.

On another occasion, defendant met his girlfriend, who was pregnant, at 34th Street and Lexington Avenue in Manhattan. When the girlfriend told defendant that she was going to look [*2]at an apartment because she did not want her child to live in a home with weapons, defendant yelled at her. She walked away, and defendant positioned himself in front of her, screaming and insisting that she give him her set of keys to his apartment. Furious, defendant said he was going to "shoot" or "kill" her, and that he did not care that they were in a public place. When the girlfriend refused to give him the keys, defendant put his hand on his hip, as if he were about to draw a gun. The girlfriend knew he had a gun there because she had felt it earlier when they hugged. She then gave defendant the keys, and stayed elsewhere that night.

The girlfriend further testified that she had an abortion because defendant refused to get rid of the guns. On the day of the procedure, she told defendant she was not coming back to live with him, and he told her that she would "pay for that." They met for dinner that evening in Manhattan, and after dinner, the girlfriend went back to defendant's apartment, and they reconciled. But when she told defendant about the abortion, he grabbed a rifle and threatened to kill her. She begged him to put the gun down, and he eventually calmed down. Shortly thereafter, the couple spent Thanksgiving weekend in Vermont with the girlfriend's sister and her sister's boyfriend. Defendant brought the Glock and the assault rifle to Vermont.

Later that fall, defendant and his girlfriend attended couples counseling. At one of the sessions, defendant arrived carrying a handgun in his waistband and the rifle in a tennis bag. When the subject of defendant's threats to kill his girlfriend arose, defendant reached into his coat, pulled out the handgun, and placed it within his grasp. The therapist saw what looked like an ammunition clip on the table between the couch and the chair. At trial, the therapist testified that the Glock recovered from defendant's apartment "resembled" the black handgun that defendant displayed at the therapy session.

A few weeks later, defendant's girlfriend's sister came to stay with them after she had an argument with her boyfriend. At around 3:00 a.m., defendant drove the sister to her boyfriend's apartment so that she could retrieve her belongings. Defendant brought the Glock pistol and the rifle. Defendant and the boyfriend argued outside the building. The boyfriend's brother was also present. The boyfriend frisked defendant for weapons and would not allow him to come upstairs. When defendant told his girlfriend that he was going to pull out his gun and shoot the sister's boyfriend, she intervened and stood between them. Defendant got in his car and said he was leaving alone. When his girlfriend and her sister came back from collecting the sister's belongings, defendant returned and was holding the Glock. The rifle was next to his car. Defendant picked up the rifle and gave it to his girlfriend. She put the rifle down and asked defendant to get rid of it. The sister also asked defendant to put the Glock away, and defendant told her to "shut up." During the drive back, defendant mentioned he had almost shot the boyfriend's brother, and when they got home, defendant started loading his weapons, concerned that the boyfriend would call the police. Subsequently, defendant sent one of his friends an instant message stating that he had almost shot the boyfriend, and that he carried his assault rifle "locked and loaded." Defendant added that his girlfriend "saved" him by throwing herself in front of him. Otherwise, he stated, they "would have found out what a frangible does to a human body."^[FN*] The boyfriend later denied that defendant had threatened to shoot him. [*3]

On New Year's Eve, defendant's girlfriend returned to their apartment after a fight. She heard a noise that sounded like a weapon being fired, and a few minutes later, defendant entered the apartment carrying the assault rifle. Defendant asked if she had heard the noise made by the rifle being fired. When she responded that it was "really loud," defendant said that he would never shoot it downstairs again. The following day, defendant told his girlfriend that he was going to shoot her sister for bringing her boyfriend into their lives.

The day after New Year's Day, defendant's girlfriend met with the Assistant District Attorney who was handling an unrelated case in which she was a cooperating witness. She later met with several detectives and told them that defendant had an AR-15 assault rifle and a handgun, and that he frequently carried the guns on his person or in his car. She added that defendant pointed the handgun at her frequently, had pointed a gun at her head on one occasion and threatened to kill her, and had threatened to kill her sister and her sister's boyfriend.

The detectives formulated a plan to apprehend defendant. At their suggestion, the girlfriend called defendant and said that she was sick and receiving treatment at the New York Downtown Hospital. She asked defendant to pick her up. She went to the location with detectives and a team of police officers. Defendant arrived in a car and when he exited it he was apprehended by the police. One of the detectives entered the passenger side of defendant's car after obtaining the keys, and saw, in plain view, what appeared to be a rifle and scope, sticking out of a black bag located between the front and back seats. He also saw two large backpacks, one of which appeared to contain magazines with ammunition. Another detective saw a backpack in the back seat. At the precinct, the police searched defendant and recovered from his pocket three rounds of .22 caliber ammunition and a switchblade knife. That night, warrants were obtained to search defendant's vehicle and his apartment. Officers searched defendant's apartment and recovered a loaded, operable Glock pistol with a high-capacity magazine, as well as gun parts, including parts for an AR-15 rifle, a .22 caliber conversion kit for the Glock, an extra gun barrel, an "extremely large amount of ammunition," magazine holders, and knife cases. In addition, they found targets with bull's-eyes, a bulletproof vest, and two bullet-resistant Kevlar helmets. In defendant's vehicle detectives found an operable Bushmaster AR-15 assault rifle in a black bag on the floor behind the passenger seat with a fully-loaded .223 caliber magazine, and a round in the chamber. They also found two green backpacks in the back seat containing, among other things, 26 fully-loaded 30-round magazines with .223 caliber ammunition (780 rounds total), a .22 caliber conversion kit, another bulletproof vest, two .45 caliber magazines, one .22 caliber magazine, fifty-seven .45 caliber rounds, and seven .22 caliber rounds.

On the conviction for criminal possession of a weapon in the second degree, defendant was sentenced, as a second felony offender, to a determinate term of 15 years for possession of the loaded assault rifle. On the conviction for criminal possession of a weapon in the third degree in connection with the Glock pistol, defendant was sentenced to two indeterminate sentences of 3½ to 7 years, concurrent to each other but consecutive to the 15 year term. The 22 counts of the same crime that stemmed from defendant's possession of large capacity ammunition feeding devices resulted in 22 concurrent terms of seven years, and the count relating to the knife brought defendant an indeterminate term of 2 to 4 years, also to run concurrently. Pursuant to Penal Law 70.30 (1) (e) (ii), the entire aggregate sentence of 18½ to 22 years imprisonment was reduced to a determinate sentence of 20 years.

The court properly denied defendant's motion to suppress evidence recovered from his car pursuant to a search warrant. There is no basis for disturbing the court's credibility [*4]determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). Further, the court properly exercised its discretion in precluding cross-examination that went beyond the scope of the hearing.

The court also properly denied defendant's motion to suppress evidence recovered from his computers pursuant to another search warrant. The warrant application established probable cause to believe that defendant was engaged in a pattern of firearms transactions, and supported an inference that evidence of such transactions could be found on his computers (see generally People v Gramson, 50 AD3d 294, 295 [2008], lv denied 11 NY3d 832 [2008]). In any event, the computer evidence introduced at trial added little or nothing to the People's case, and any error in receiving that evidence was harmless (see People v Crimmins, 36 NY2d 230 [1975]).

Defendant challenges the legal sufficiency of the evidence supporting his convictions of possessing a pistol during two incidents that took place before the police recovered the pistol from defendant's apartment. However, the totality of the circumstantial evidence warranted the conclusion that the pistol, which was determined to be operable when recovered after defendant's arrest, was also operable when defendant displayed it on the occasions in question. As in People v Temple, "[u]nder the circumstances of this case it defies logic to conclude that the gun was inoperable," (165 AD2d 748, 749 [1990], lv denied 76 NY2d 944 [1990]), or that operability on those occasions was not established beyond a reasonable doubt.

The witnesses were unable to specify the dates on which these two incidents occurred. Accordingly, the corresponding counts of the indictment set forth approximate time frames. Under the circumstances, the People were unable to allege more specific time periods, and defendant received reasonable notice (see People v Morris, 61 NY2d 290, 296 [1984]; People v Latouche, 303 AD2d 246 [2003], lv denied 100 NY2d 595 [2003]).

Defendant also challenges the legal sufficiency of the evidence supporting his convictions relating to possession of large capacity ammunition feeding devices (Penal Law § 265.02 [8]). However, the evidence established that the 30-round magazines met the statutory definition (Penal Law § 265.00 [23]).

The court properly received evidence of defendant's abusive conduct. One of the main issues at trial was the credibility of defendant's former girlfriend, particularly with regard to certain charges of which defendant was ultimately acquitted. The challenged evidence completed the narrative and provided necessary background information to place the ex-girlfriend's testimony in a believable context (see People v Leeson, 12 NY3d 823, 827 [2009]; People v Dorm, 12 NY3d 16, 19 [2009]; People v Steinberg, 170 AD2d 50, 72-74 [1991], affd 79 NY2d 673 [1992]). The evidence was also relevant to defendant's intent to use one of the weapons unlawfully against another person, which was an element of one of the charges.

The probative value of the challenged evidence outweighed any prejudicial effect. While some of the evidence involved cruelty to animals, it was not so inflammatory as to deprive defendant of a fair trial. The court minimized any prejudice by means of careful limiting instructions, and it took sufficient curative action regarding inadmissible testimony that was inadvertently elicited. In any event, given the overwhelming evidence against defendant, there is no significant probability that the admission of the challenged evidence affected the verdict (see People v Gillyard, 13 NY3d 351, 356 [2009]).

"It is our duty in reviewing the defendant's sentence to examine the record in the light of the objectives of the penal system and to make a decision based on the particular facts of the case. Generally, four principles have been accepted as objectives of criminal punishment: [*5]deterrence; rehabilitation; retribution; and isolation. The primary responsibility for imposing a condign sentence rests on the [t]rial [j]udge, and the determination of the kind and limits of punishment made by the [t]rial [j]udge should be afforded high respect" (People v Notey, 72 AD2d 279, 282 [1980] [internal citations omitted]).

In light of these principles, we find only that it was excessive to run the indeterminate sentences consecutive to the determinate sentence of 15 years. However, the dissent's argument for a further reduction is entirely unfounded and rings hollow. First, while defendant may not have engaged in any behavior towards humans which would fit the dictionary definition of "violent," many of his actions involving the weapons he possessed were unquestionably sinister and menacing, such as pointing them at people and otherwise displaying them in his encounters with people he perceived as hostile. It is mystifying that the dissent does not consider defendant's numerous statements to his girlfriend that he was going to kill her as "threatening." Further, defendant's brazen and cavalier decisions to carry a Glock pistol in as public a place as Penn Station and to brandish that same weapon in a therapy session demonstrate that this is not a garden variety weapons possession case.

In any event, the dissent's position is inconsistent with the Penal Law. Taken to its logical conclusion, the dissent's argument would preclude a court from ever sentencing a defendant convicted of weapons possession to the maximum prison term, in the absence of aggravating factors such as the actual use of a weapon to harm somebody. However, this plainly contravenes the intent of the Legislature. Had the Legislature meant to limit the sentence for strict possession to the prison terms preferred by the dissent, it presumably would have so provided in the statute.

Further, contrary to the dissent's view, nothing in our precedent mandates that the maximum sentence in a weapons possession case may not be imposed where no one was harmed. The sentences handed down in each of the cases cited by the dissent were based on the unique facts presented by each case. Further, the dissent's analysis ignores the different goals of sentencing. For example, one of the four widely recognized goals of sentencing is isolation, which "is required when the individual is a continuing threat to the community" (People v Notey, 72 AD2d at 282 n 2). The cases cited by the dissent do not suggest that the defendant in those cases represented a continuing threat, so the sentencing courts in those cases may have seen no great need to "isolate" the defendant, notwithstanding the harm caused to the victims in those cases. Here, defendant displayed extreme anti-social behavior and recklessness, which calls for isolation from the community, notwithstanding that he was not found to have intended to use the weapons. Indeed, the probation department concluded in its presentence report that defendant "appears to be a threat to the community," and that his prognosis for "future adjustment towards society appears to be poor."

By adopting trial counsel's statement that defendant was merely a gun hobbyist, the dissent virtually ignores all of the evidence in the case. To this defendant guns are clearly more than a pastime. They are a means of intimidation, menace and exerting power. His use of them, repeatedly, in such a manner, fully justifies the sentence imposed herein. Indeed, if this strict possession case does not call for the maximum sentence, one is hard pressed to imagine one that would.[*6]

Defendant's remaining contentions are unpreserved or abandoned, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal. Concur—Mazzarelli, J.P., Friedman, Renwick and Freedman, JJ. Catterson, J., dissents in part in a memorandum as follows:

Catterson, J. (dissenting in part). I must respectfully dissent in part. The sentence proposed by the majority, even though reduced from 20 years to 15 years, is, in my opinion, still excessive. As defense counsel argued at sentencing, this is a "straight possession case." The 30-year-old defendant did not fire any of the weapons, injure anyone, or commit any acts of violence during the incidents of weapons possession. The majority justifies the 15-year sentence by relying entirely on the testimony of the defendant's girlfriend. However, the testimony that the defendant threatened to shoot her and other people which the majority reiterates for five pages was soundly rejected by the triers of fact. Had the jury credited that testimony, they would not have acquitted the defendant of all counts that included intent to cause harm to another person.

Clearly, the jury agreed instead with the defense's characterization of the girlfriend as a "sophisticated and callous criminal" who decided to "get rid of" the defendant "once and for all." Indeed, as adduced at trial, the defendant's girlfriend was arrested in 2006 for prostitution, promoting prostitution, and money laundering. Subsequently, she entered into a cooperation agreement with the Manhattan District Attorney's Office. On January 2, 2008, she met with the detectives handling her prostitution case to formulate a plan to apprehend the defendant. The girlfriend lured the defendant to New York Downtown Hospital with a lie that she was sick and receiving treatment there. When the defendant arrived, he was arrested by the police.

Furthermore, the girlfriend's testimony of threats against her sister's boyfriend was controverted by the boyfriend himself who denied that the defendant ever said he would shoot him. Hence, it should not mystify the majority that I do not consider the defendant's alleged numerous statements to his girlfriend as "threatening." Quite simply, in my opinion, those statements cannot be viewed as credible evidence.

During the defendant's arrest, a search of his automobile turned up a Bushmaster AR-15 rifle and large-capacity ammunition feeding devices, and the defendant was carrying a switchblade. In a subsequent search of his apartment, the police discovered, among other things, a Glock 9 millimeter pistol and seized three computers. At trial, the prosecution presented evidence taken from the computers that the defendant used internet forums to comment on carrying and shooting guns, and that the defendant sent an instant message on his computer stating that he had almost shot someone. Witnesses testified to the defendant's possession of firearms outside of his apartment, including that he stowed the rifle and ammunition in his vehicle, and on two occasions took the Glock to Penn Station and a therapist appointment. However, there was no testimony that the defendant was violent or threatening, or that he fired the weapons on these occasions.

After a jury trial, the defendant was acquitted of possessing the assault rifle with intent to use it against another person, and both counts of first-degree robbery. He was convicted of one [*7]count of second-degree criminal possession of a weapon (the rifle) and multiple counts of third-degree criminal possession of a weapon (the Glock, the rifle, ammunition feeding devices, and the switchblade). Having been previously convicted of a felony,^[FN*] the defendant was sentenced, as a second felony offender, to a determinate sentence of 15 years for possession of the loaded assault rifle; to indeterminate sentences of 3½ to 7 years for each of the two counts of possession of the Glock, concurrent with each other and consecutive to the 15-year sentence; to determinate sentences of seven years for possessing an assault weapon and large capacity ammunition feeding devices, concurrent with each other and the above sentences; and to an indeterminate sentence of 2 to 4 years for possession of a switchblade knife, concurrent with the above sentences. The aggregate sentence of 18½ to 22 years' imprisonment was reduced by operation of Penal Law § 70.30 (1) (e) (ii) to a determinate sentence of 20 years.

On appeal, the defendant argues, inter alia, that because there was no evidence that he ever shot at, or injured anyone with any of the weapons, the 20-year determinate sentence is excessive. The majority agrees to the extent of reducing the sentence to 15 years. For the following reasons, I would further reduce the sentence to seven years aggregate.

While a sentencing court possesses broad discretionary power with respect to the imposition of a sentence, this Court has broad, plenary power pursuant to CPL 470.15 (6) (b) to modify a sentence that is unduly harsh or severe. Thus, even where the sentence is within the permissible statutory range, this Court may review a sentence in the interest of justice without deference to the sentencing court and regardless of whether the trial court abused its discretion in the imposition of a sentence. (See People v Delgado, 80 NY2d 780, 783 [1992].)

The defendant was convicted of second-degree criminal possession of a weapon for possessing a loaded rifle outside of his home or business pursuant to Penal Law § 265.03 (3), which is a class C violent felony (see Penal Law § 70.02 [1] [b]). Under Penal Law § 70.06 (6) (b), governing second felony offenders, the sentencing court was required to impose a determinate sentence of imprisonment for a term of at least five years and not exceeding 15 years. The defendant was given the maximum term of 15 years.

In my view, imposition of the maximum sentence for weapons possession where no one was harmed ignores the precedent of this court. We have found a sentence of that length appropriate in weapons possession cases where a homicide has occurred. In People v Guzman (266 AD2d 37 [1st Dept 1999], lv denied 94 NY2d 920 [2000]), this Court affirmed a sentence of 7½ to 15 years for criminal possession of a weapon in the second degree in a case where the defendant, a second violent felony offender, fatally shot an individual. In People v Banner (61 AD3d 592 [1st Dept 2009], lv denied 13 NY3d 741 [2009]), the defendant was convicted by a jury of manslaughter and criminal possession of a weapon in the second degree and we affirmed concurrent sentences of 8 and 15 years respectively. Fifteen years is the sentence for manslaughter. (See e.g. People v Calderon, 66 AD3d 314[*8] [1st Dept 2009] [5 to 15 years for second-degree manslaughter], lv denied 13 NY3d 858 [2009]; People v Abreu-Guzman, 39 AD3d 413 [1st Dept 2007] [5 to 15 years for second-degree manslaughter], lv denied 9 NY3d 872 [2007]; People v Oliveri, 29 AD3d 330 [1st Dept 2006] [15 years for first-degree manslaughter], lv denied 7 NY3d 760 [2006].)

The majority appears to agree with the People that a longer sentence is justified because the defendant is "a homicide waiting to happen." Again, relying entirely on the testimony of the defendant's girlfriend that he threatened to shoot her and others, the majority concludes that the defendant's behavior, if not violent, was "unquestionably sinister and menacing." However, it bears repeating that the jury specifically rejected the People's claims that the defendant intended to use the weapons. On the contrary, the credible evidence showed that while the defendant had an avid interest in guns, which he used for target practice or sharpshooting, he did not use or intend to use the weapons against another person.

At sentencing, defense counsel described the defendant's collection of weapons and ammunition and his activity on various internet gun forums as his "gun hobby." Since it is undisputed that no one was injured, or even that the defendant displayed or brandished the rifle, I recommend five years determinate.

I would also recommend reducing the two sentences for third-degree criminal possession of the Glock to 2 to 4 years indeterminate for the following reasons: The defendant was convicted of third-degree criminal possession of a weapon pursuant to Penal Law § 265.02 (1), which was a conviction for fourth-degree possession, elevated to third degree by dint of a prior 1998 felony conviction. As a second felony offender, where the current crime is a nonviolent class D felony (see Penal Law § 70.06 [6] and § 70.02 [1] [c] [excluding subdivision one of section 265.02 from the definition of violent felony]), the maximum term for third-degree weapons possession is at least four years and must not exceed seven years. (See Penal Law § 70.06 [3] [d].) "[T]he minimum period of imprisonment under an indeterminate sentence for a second felony offender must be fixed by the court at one-half of the maximum term imposed and must be specified in the sentence." (Penal Law § 70.06 [4] [b].) Pursuant to Penal Law § 70.06 (2), the term is indeterminate.

Choosing the maximum of seven years, the court sentenced the defendant to 3½ to 7 years indeterminate for third-degree weapons possession, concurrent with each other and consecutive to the sentence for possession of the rifle. The defendant persuasively argues that this amounts to a double-counting of his prior conviction. His 1998 conviction is counted once to raise the fourth-degree possession charge, a class A misdemeanor, to the third degree, a class D felony; and then a second time in his sentence as a second felony offender.

In my view, this double-counting, together with the undisputed fact that no one was injured, requires reduction of the sentence imposed by the sentencing court. Thus, I would recommend an indeterminate sentence of 2 to 4 years for each of the two Glock possession convictions. (See Penal Law § 70.02 (1) (c); § 70.06 (2), (3) (d); (4) (b); § 265.02 [1].) Pursuant to Penal Law § 70.30 (1) (d), "[i]f the defendant is serving one or more indeterminate sentences of imprisonment and one or more determinate sentences of imprisonment which run consecutively, the minimum . . . terms of the indeterminate . . . sentences and the term . . . of the determinate sentence . . . are added to arrive at an aggregate maximum term of imprisonment."

Thus, a five-year determinate sentence for second-degree criminal possession of a [*9]weapon and indeterminate concurrent sentences of 2 to 4 years for third-degree criminal possession of a weapon which run consecutive to the five-year sentence, result in an aggregate maximum sentence of seven years, which I believe is appropriate in this case and consistent with this Department's precedent. (See e.g. People v Brown, 92 AD3d 455 [1st Dept 2012] [unanimously affirming a term of seven years for the defendant, a second felony offender, who was convicted of criminal possession of a weapon in the second degree after a jury trial], lv denied 18 NY3d 955 [2012]; People v Padilla, 89 AD3d 505 [1st Dept 2011] [unanimously affirming a seven-year sentence for the defendant, a second violent felony offender, who was convicted of criminal possession of a weapon in the second degree after a jury trial].) To the extent that the defendant was also sentenced to the maximum terms for the remaining third-degree weapons possession convictions (i.e., seven years determinate for possession of an assault rifle and large capacity feeding devices pursuant to Penal Law § 70.06 [6]; § 265.02 [7], [8]), I would reduce those also, but do not make those calculations here, since those seven-year sentences run concurrent with the seven-year aggregate calculated above and do not impact that sentence.