| People v Dawson |
| 2013 NY Slip Op 07077 [110 AD3d 1350] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v TitusDawson, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedDecember 11, 2009 in Albany County, upon a verdict convicting defendant of the crimeof criminal possession of a weapon in the third degree.
On March 6, 2009, police officers were dispatched to 521 Lark Drive in the City ofAlbany in response to a call for a burglar alarm going off. Upon arriving, officer JoelCaldwell noticed that the back door to the residence was open and the door frame wassplintered, and called for back up. Detective Scott Gavigan soon responded, andCaldwell and Gavigan proceeded to "clear" the residence. Although no intruders werediscovered, Caldwell and Gavigan did observe a .380 caliber semiautomatic pistol in apartially open dresser drawer. Based upon this, the police secured the building andapplied for, and were granted, a search warrant. A further search was then conducted,resulting in the seizure of the gun, $8,880 in cash and a quantity of marihuana.
Defendant subsequently was indicted and charged with criminal possession of aweapon in the third degree. Following a jury trial, defendant was convicted as chargedand thereafter was sentenced, as a second felony offender, to 3½ to 7 years inprison—said sentence to be served concurrently with the sentence imposed upondefendant's subsequent plea of guilty to criminal possession of a controlled substance inthe fourth degree. This appeal by defendant ensued.[*2]
We affirm. Initially, we reject defendant's claimthat the underlying search warrant was not supported by probable cause. Simply put, thewarrant application and supporting documentation, which described the contrabandfound—in plain view—at the scene and established that the dwelling inquestion was defendant's residence, provided "sufficient information to support areasonable belief that evidence of a crime may be found [therein]" (People v Pinkney, 90 AD3d1313, 1315 [2011] [internal quotation marks and citations omitted]; accord People v Vanness, 106AD3d 1265, 1266 [2013]). Accordingly, we discern no error in Supreme Court'sdenial of defendant's suppression motion.
Defendant next asserts that a Brady and/or Rosario violationoccurred when the People failed to disclose that one of their rebuttal witnesses had beenconvicted of disorderly conduct, thereby warranting reversal of the underlyingconviction. We do not agree. CPL 240.45 (1) (b) requires the People to disclose aprosecution witness's judgment of conviction only if "the record of [such] conviction isknown by the prosecutor to exist." Here, there is nothing in the record to suggest that thePeople were aware of the relevant conviction until defense counsel raised this issueduring the charge conference and, clearly, the People cannot be faulted for failing todisclose information that they did not possess (see People v Carter, 50 AD3d 1318, 1321 [2008], lvdenied 10 NY3d 957 [2008]). Moreover, it is well settled that a Rosario orBrady violation warrants reversal "only where there is a reasonable possibilitythat the disclosure of such material would have produced a different result at trial" (People v Phillips, 55 AD3d1145, 1149 [2008] [internal quotation marks and citation omitted], lv denied11 NY3d 899 [2008]; seePeople v Sheppard, 107 AD3d 1237, 1241 [2013]; People v Griffin, 48 AD3d894, 895 [2008], lv denied 10 NY3d 959 [2008]). In this regard, the recordreveals that once this conviction came to light, Supreme Court reopened the proof toafford defense counsel an opportunity to cross-examine the witness on this issue (see People v Williams, 50AD3d 1177, 1179-1180 [2008]; see also People v Young, 74 AD3d 1471, 1473 [2010],lv denied 15 NY3d 811 [2010]). Under these circumstances, we find that there isno reasonable possibility that the verdict would have been different had the relevantconviction been disclosed in a timely manner (see People v Sheppard, 107 AD3dat 1241; People v Griffin, 48 AD3d at 896).
Nor are we persuaded that the jury's verdict was against the weight of the evidence.As applied to the matter before us, a person is guilty of criminal possession of a weaponin the third degree when he or she possesses any firearm and previously has beenconvicted of a crime (see Penal Law §§ 265.01 [1]; 265.02[1]).[FN*] Where, as here, the People proceed upon the theory of constructive possession, they bearthe burden of "establish[ing] that defendant exercised dominion and control over the[contraband or the] area where the contraband was found" (People v Buchanan, 95 AD3d1433, 1433-1434 [2012] [internal quotation marks and citations omitted]; seePeople v Pinkney, 90 AD3d at 1314).
As to the possession element, defendant's own witnesses established that defendantresided at 521 Lark Drive and that the room where the gun was located was used bydefendant as his bedroom. The proof at trial further revealed that, in addition to men'sshoes and clothing, a number of items bearing defendant's name and/or likeness werefound in the bedroom where the gun was recovered—including defendant's birthcertificate, a brown trifold wallet containing [*3]defendant's photo identification and Social Security card,photographs of defendant and a pay stub, refund check and traffic summons—allbearing defendant's name (see People v Buchanan, 95 AD3d at 1435).Additionally, although one of defendant's friends testified that he and defendant foundthe gun in a local park the night before its discovery by the police and intended to turnthe gun in as part of a local buy-back program, the People's rebuttal witnesses establishedthat neither defendant nor his friend contacted either the police or the pastor in charge ofthe buy-back program to arrange for disposal of the weapon. Hence, despite defendant'sprotestations to the contrary, we are satisfied that the People met their burden of"disproving, beyond a reasonable doubt, the defense of temporary lawful possession of aweapon" (People v Rossi,99 AD3d 947, 951 [2012], lv granted 20 NY3d 1066[2013])—particularly in view of the fact that the weapon was discovered in a roomcontaining marihuana, a digital scale, small plastic baggies, a newspaper articlediscussing gang-related shootings in the City of Albany and cash in the amount of$8,880. In short, "while a different verdict would not have been unreasonable, uponviewing the evidence in a neutral light and according appropriate deference to the jury'sinterpretation thereof," we find that the verdict is not against the weight of the evidence(People v Toye, 107 AD3d1149, 1151 [2013]). Defendant's remaining contentions, including his assertion thatthe sentence imposed is harsh and excessive, have been examined and found to belacking in merit.
Stein, J.P., McCarthy and Spain, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant does notdispute that the gun in question was operable, and there is no question that defendantpreviously was convicted of a crime.