| People v Butler |
| 2015 NY Slip Op 02017 [126 AD3d 1122] |
| March 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vParrish Butler, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered May 30, 2012, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the second degree.
While attempting to flee from pursuing police officers, defendant allegedly discardeda loaded handgun. He was thereafter arrested and charged with criminal possession of aweapon in the second degree. Following a jury trial, defendant was found guilty ascharged and was subsequently sentenced to 5
We first address defendant's claim that his conviction was against the weight of theevidence.[FN*] Inparticular, defendant limits his argument to the claim that the People failed to [*2]prove beyond a reasonable doubt that he constructivelypossessed the handgun that was secured prior to his arrest. We disagree.
Constructive possession can be demonstrated where there is evidence—eitherdirect or circumstantial—that defendant exercised "dominion and control over theweapon or the area in which it was found" (People v Bellamy, 118 AD3d 1113, 1114 [2014]; see People v Perry, 116 AD3d1253, 1254 [2014]; Peoplev Dawson, 110 AD3d 1350, 1352 [2013], lv denied 23 NY3d 1035[2014]; People v Stewart,95 AD3d 1363, 1364 [2012], lv denied 19 NY3d 1001 [2012]; People v Pinkney, 90 AD3d1313, 1314 [2011]). The People presented testimonial evidence of several policeofficers, including Gregory McGee, who averred that, after hearing a gun shot during hisovernight shift, his investigation led him to observe defendant turning a street corner on abicycle. When defendant saw McGee's marked police car, he became visibly nervous andimmediately clutched the right side of his waistband. Believing that defendant wasarmed, McGee exited his vehicle, drew his firearm and ordered defendant to show hishands. Defendant refused to comply with the directive and a physical encounter ensued.As McGee holstered his handgun and attempted to grab his taser, defendant fled on hisbicycle. McGee then radioed for assistance while pursuing defendant on foot and aresponding police officer, Jason Seward, pulled his patrol car onto the sidewalk in orderto block defendant. McGee testified that, as defendant ran around the patrol car, heobserved defendant's hand emerge from under his sweatshirt and throw something,which created a sound of "metal hitting the ground." As Seward continued to pursuedefendant, McGee found a handgun on the sidewalk a few feet from Seward's patrol car.Shortly thereafter, defendant was apprehended and the handgun was later confirmed tocontain three rounds of "live" ammunition and one spent shell casing, indicating that thehandgun had been fired once.
Conversely, defendant denied that he possessed any weapon on the night in questionand averred that he fled from the police officers because he had some marihuana tuckedinto his underwear. Such testimony created a credibility issue for the jury to decide(see People v Perry, 116 AD3d at 1255). While defendant argues that the verdictis unsupportable due to, among other things, the absence of evidence that the handguncontained his DNA or had been found on his person, "viewing the evidence in a neutrallight and according deference to the jury's credibility determinations," we find thatdefendant had constructive possession of the gun such that the conviction was notcontrary to the weight of the evidence (People v Stewart, 95 AD3d at 1364).
Finally, defendant contends that the sentence was harsh and excessive, specificallyasserting that, because he was 18 years of age at the time the crime was conducted andhad no prior felony convictions, County Court abused its discretion by failing toadjudicate him as a youthful offender. We agree with the People's responsive argumentthat, inasmuch as defendant was convicted of an armed felony, he was required todemonstrate "mitigating circumstances that bear directly upon the manner in which thecrime was committed" (CPL 720.10 [3] [i]; see CPL 720.10 [2] [a] [ii]; People v Brodhead, 106 AD3d1337, 1337 [2013], lv denied 22 NY3d 1087 [2014]). Here, defendant failedto describe any mitigating factors that may have existed. Moreover, defendant's claimthat his "clean" criminal record merits a reduced sentence is lacking in merit, as therecord shows that there was a criminal possession of a weapon in the second degreecharge pending at the time of his arrest for the instant crime. Thus, we cannot say thatCounty Court abused its discretion or that extraordinary circumstances exist that wouldrequire a modification of defendant's sentence (see People v Bellamy, 118 AD3dat 1117; People v Shoga, 89AD3d 1225, 1232 [2011], lv denied 18 NY3d 886 [2012]; People v Appleby, 79 AD3d1533, 1534 [2010]).
[*3] Lahtinen,J.P., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant's nonspecificmotion to dismiss was inadequate to preserve his legal sufficiency argument (see People v Hawkins, 11NY3d 484, 492 [2008]), but our review of his claim that the verdict was against theweight of the evidence requires us to review the sufficiency of the evidence relating toeach element of the charged crime (see People v Simmons, 111 AD3d 975, 977-978 [2013],lv denied 22 NY3d 1203 [2014]).