| People v Smith |
| 2019 NY Slip Op 53939 [177 AD3d 1190] |
| November 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Shain A. Smith, Appellant. |
Paul R. Corradini, Elmira, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Chemung County (RichJr., J.), rendered June 30, 2017, upon a verdict convicting defendant of the crime ofcriminal possession of a weapon in the second degree.
Defendant was riding in the front passenger seat of a vehicle that was the subject of atraffic stop in the City of Elmira, Chemung County. The police officer who effected thestop detected the smell of marihuana in the vehicle and learned that Donte Buckley, thebackseat passenger, had marihuana in his possession. A search of the vehicle ensued andresulted in the recovery of two loaded and operable pistols—one under the frontpassenger seat and the other in that seat's back pocket—and a backpack on thefront passenger floorboard containing clothing and a bag of bullets. Defendant wascharged in an indictment with two counts of criminal possession of a weapon in thesecond degree, one count for each gun. The matter proceeded to a jury trial that endedwith defendant's conviction upon one of the counts, that relating to the pistol foundunder the front passenger seat. After denying defendant's motion to set aside the verdict,County Court sentenced him, as a second violent felony offender, to seven years inprison and five years of postrelease supervision. Defendant appeals.
We affirm. Defendant first argues that the verdict was against the weight of theevidence. As is relevant here, a person commits criminal possession of a weapon in thesecond degree if he or she knowingly possesses a loaded firearm outside of his or herhome or business (see Penal Law § 265.03 [3]; People v Rawlinson, 170AD3d 1425, 1426 [2019], lv denied 33 NY3d 1107 [2019]). Defendant'spresence in the vehicle further gave rise to a permissive presumption that he was inknowing possession of both firearms (see Penal Law § 265.15 [3];People v Sostre, 172 AD3d1623, 1625-1626 [2019], lv denied 34 NY3d 938 [2019]; People vRawlinson, 170 AD3d at 1426-1427).
With regard to the firearm under defendant's seat that he was convicted ofpossessing, the People produced proof that defendant lied about his identity at the outsetof the traffic stop, he could have easily placed the firearm under his seat, and thebackpack on the floorboard nearby contained ammunition of the same caliber and brandas that used in the firearm, as well as men's clothing that was too large for Buckley andmore suited for defendant. Defendant attempted to rebut the presumption of possessionby noting the lack of direct evidence tying him to the firearm and testifying that thefirearm and backpack were not his. The jury apparently found that defendant hadsucceeded in rebutting the presumption with regard to the firearm in the back pocket ofthe front passenger seat—a gun covered by a receipt bearing Buckley's name andnear where Buckley was sitting—but declined to do the same for the firearmwithin defendant's reach that other proof suggested was under his dominion and control(see People v Oliver, 135AD3d 1188, 1190 [2016], lv denied 27 NY3d 1003 [2016]). Accepting thata different verdict would have been reasonable, "upon reviewing the foregoing evidencein a neutral light and deferring to the jury's resolution of credibility issues, we aresatisfied that the jury's verdict is in accord with the weight of the evidence" (id. at1191 [citations omitted]; see People v Sostre, 172 AD3d at 1626).
Defendant's other contention is that County Court erred in denying his motion to setaside the verdict based upon newly discovered evidence.[FN*] The new evidence took the form ofsworn letters by Buckley—written after both defendant's trial and Buckley's guiltyplea to criminal possession of a weapon in the second degree relating to his possession ofthe gun recovered in the seat's back pocket—in which Buckley stated that bothguns were in his possession. Inasmuch as defendant acknowledged that Buckley offeredto testify but was turned down, defendant failed to "meet his burden to demonstrate that[the new evidence] could not have been produced at trial with due diligence" (People v Abrams, 73 AD3d1225, 1228 [2010], affd 17 NY3d 760 [2011]; see CPL 330.30 [3];People v Dym, 163 AD2d 150, 153-154 [1990], lv denied 76 NY2d 892[1990]; compare People v Beach, 186 AD2d 935, 936 [1992]). The Peoplefurther showed that Buckley's exclusive possession claims were of recent vintage andcontradicted his earlier protestations of innocence. Even assuming that Buckley wouldhave incriminated himself at defendant's trial while criminal charges against him werepending, however, the jury would have been free to reject Buckley's testimony and find,"based upon the automobile presumption, that defendant knowingly possessed" the gununder his seat (People vBlocker, 132 AD3d 1287, 1288 [2015] [citation omitted], lv denied 27NY3d 992 [2016]; see People v Lemmons, 40 NY2d 505, 510-512 [1976]; People v Carter, 60 AD3d1103, 1106 [2009], lv denied 12 NY3d 924 [2009]). Defendant accordinglyalso failed to show, as required, the probability of a more favorable verdict had Buckley'sclaims been placed before the jury (see CPL 330.30 [3]; People v Brown,162 AD2d 1030, 1031 [1990], lv denied 77 NY2d 836 [1991]; see also People v Shaw, 174AD3d 1036, 1038-1039 [2019]). Thus, County Court did not abuse its discretion indenying defendant's motion without a hearing (see CPL 330.40 [2] [e] [ii]).
Egan Jr., J.P., Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant also arguedthat trial counsel's failure to call Buckley to testify constituted ineffective assistance, but,to the extent that he raises that argument on appeal, it involves matters outside the recordand is not the proper subject of a CPL article 330 motion (see People v Wolf, 98NY2d 105, 119 [2002]; Peoplev Blackman, 118 AD3d 1148, 1151 [2014], lv denied 24 NY3d 1001[2014]; People v Hernandez, 210 AD2d 535, 536 [1994], lv denied 84NY2d 1032 [1995]).