| People v Perry |
| 2014 NY Slip Op 02635 [116 AD3d 1253] |
| April 17, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vDaquan K. Perry, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Chemung County(Buckley, J.), rendered July 11, 2011, upon a verdict convicting defendant of the crimesof criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
In January 2011, two masked males forcibly entered a private residence, stole moneyand property from one of the occupants at gunpoint and ejected a round of ammunitioninto the floor before fleeing. The victim initially followed the assailants and observedthem heading across the street towards an apartment complex, but retreated after shotswere fired at him. The victim then reported the incident to police and provided the streetname "Casanova" as possibly being one of the gunmen. Officers thereafter responded toan apartment within the nearby complex towards which the assailants fled, wheredefendant and another suspect were detained. Upon searching the apartment, policediscovered the clothes that the assailants were reportedly wearing during the robbery, anitem of jewelry that had been stolen and a 9 millimeter pistol loaded with ammunitionthat was determined to be identical to the round that had been ejected during the robbery.Defendant was thereafter charged in a 10-count indictment with crimes stemming fromhis alleged involvement in the home invasion and possession of the firearm that wasseized. Following a jury trial, he was convicted of one count each of criminal possessionof a weapon in the second degree and third degree. Sentenced as a second violent felonyoffender to an aggregate prison term of seven years with five years of postreleasesupervision, defendant now appeals.[*2]
Defendant's sole contention on this appeal is thatthe verdict was against the weight of the evidence because the proof failed to support afinding that he constructively possessed the weapon seized. A person having previouslybeen convicted of a crime is guilty of criminal possession of a weapon in the third degreewhen he or she possesses an operable firearm (see Penal Law §§265.01 [1]; 265.02 [1]), and of criminal possession of a weapon in the second degreewhen such firearm is loaded (see Penal Law § 265.03 [3]).[FN1]"Where, as here, the People proceed upon the theory of constructive possession, theybear the burden of establishing that defendant exercised dominion and control over thecontraband or the area where the contraband was found" (People v Dawson, 110 AD3d1350, 1352 [2013] [internal quotation marks, brackets and citations omitted];see Penal Law § 10.00 [8]; People v Manini, 79 NY2d 561,572-573 [1992]). Such constructive possession may be established through either director circumstantial evidence (see People v Brian, 84 NY2d 887, 889 [1994]; People v Pinkney, 90 AD3d1313, 1314 [2011]), and may be found even though others have access to thecontraband or the area where it is located (see People v Torres, 68 NY2d 677,679 [1986]; People v Pinkney, 90 AD3d at 1314-1315; People v Edwards, 39 AD3d1078, 1079 [2007]).
The trial evidence established that the residence in which defendant was located andthe fruits of the burglary were found belonged to Jacqueline Carter, who lived there withher adult son, Anthony Roberson. When police arrived, one of the officers went aroundto the rear of the apartment where he witnessed an arm protrude from an upstairsbathroom window and toss out what turned out to be an unloaded revolver. Momentslater, as another officer was at the front door questioning Carter, Roberson came downthe stairs followed by a female who was staying with Carter while she recoveredfollowing hospitalization. After several calls up the stairs by police announcing theirpresence and ordering anyone else to come down, defendant finally emerged wearingboxer shorts and a white tank top, and sweating profusely. A search of the upstairsportion of the apartment, which consisted of two bedrooms and a bathroom, revealedvarious articles of clothing matching the description of those worn by the assailants ineach of the two bedrooms, including some located within the same closet where theloaded pistol was found.
While mere presence in an apartment where contraband is found is insufficient toconstitute constructive possession (see People v Headley, 74 NY2d 858, 859[1989]; People v Edwards, 206 AD2d 597, 597-598 [1994], lv denied 84NY2d 907 [1994]), the evidence here "established more than [defendant's] mere presencebut [his] presence under a particular set of circumstances from which a jury could inferpossession" (People v Bundy, 90 NY2d 918, 920 [1997]; see People v Stewart, 95 AD3d1363, 1364 [2012], lv denied 19 NY3d 1001 [2012]; People vPinkney, 90 AD3d at 1315; People v Carter, 74 AD3d 1375, 1377-1378 [2010], lvdenied 15 NY3d 772 [2010]). The fact that Roberson and Carter's houseguest werealso upstairs and had access to the area where the gun was found does not preclude afinding that defendant exercised control over that same area (see People vStewart, 95 AD3d at 1364; People v Pinkney, 90 AD3d at 1314-1315).Although defendant testified on his own behalf and, while acknowledging that a robberywas indeed committed, claimed not to have been involved, this created a credibility issuefor the jury to resolve.[FN2]Evaluating the evidence in a neutral light and [*3]weighing the probative force of the conflicting testimonyand the inferences that can be drawn therefrom, while giving deference to the jury'scredibility determinations (seePeople v Romero, 7 NY3d 633, 643-644 [2006]; People v Bleakley, 69NY2d 490, 495 [1987]; Peoplev Callicut, 101 AD3d 1256, 1259 [2012], lv denied 20 NY3d 1096[2013]), we do not find the verdict to be contrary to the weight of the evidence.
Lahtinen, Rose and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: The People established,and defendant does not dispute, that the firearm in question was operable and thatdefendant previously was convicted of a crime.
Footnote 2: Notably, defendant'snarrative of the evening of the robbery conflicted with Carter's testimony in severalmaterial respects.