| People v Carmichael |
| 2009 NY Slip Op 09788 [68 AD3d 1704] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Royal C.Carmichael, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered May 2, 2006. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree, criminal possession of a weapon in the second degree and criminal possession ofa weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of criminal possession of a weapon in the thirddegree and dismissing count seven of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, murder in the second degree (Penal Law § 125.25 [1]) and criminal possessionof a weapon in the third degree (§ 265.02 [former (1)]). We agree with defendant that theevidence is legally insufficient to support his conviction of criminal possession of a weapon inthe third degree (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and wetherefore modify the judgment accordingly. That count concerned defendant's alleged possessionof a firearm approximately four days after the victim was murdered. Following defendant's arreston that date, the police asked defendant to disclose the location of the weapon he used in thecrime. Defendant replied that the gun was in a safe located on a closet shelf in his mother'sbedroom and that he lived in his mother's house. Defendant gave the police an incorrectcombination to the safe, and the police were able to open it only after defendant's motherretrieved the correct combination from a slip of paper in her purse. Viewing the evidence in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that there is no valid line of reasoning and permissible inferences to support theconclusion that defendant exercised dominion and control over the safe, the bedroom in whichthe safe was located, or his mother, and thus the evidence is legally insufficient to establish thatdefendant was in constructive possession of the firearm on the date of his arrest (see People vManini, 79 NY2d 561, 573-574 [1992]; People v Edwards, 39 AD3d 1078, 1079 [2007]; cf. People v Ortiz, 61 AD3d 779[2009], lv denied 13 NY3d 748 [2009]; see generally Bleakley, 69 NY2d at 495).
We reject the further contention of defendant that the evidence is legally insufficient tosupport his conviction of murder in the second degree (see generally id.). Viewing theevidence in light of the elements of that crime as charged to the jury (see People v Danielson, 9 NY3d342, [*2]349 [2007]), we also reject defendant's contentionthat the verdict with respect thereto is against the weight of the evidence (see generallyBleakley, 69 NY2d at 495).
Contrary to the contention of defendant, we conclude that Supreme Court properly deniedhis motion pursuant to CPL 330.30 (2) seeking to set aside the verdict based on jurormisconduct. In order to prevail on that motion, defendant was required to establish "by apreponderance of the evidence that improper conduct by a juror prejudiced a substantial right of"defendant (People v McDonald, 40AD3d 1125 [2007], lv denied 9 NY3d 878 [2007]; see People v Brown, 278AD2d 920 [2000], lv denied 96 NY2d 781 [2001]; People v Adams, 278 AD2d920, 920-921 [2000], lv denied 96 NY2d 825 [2001]; see generally People vIrizarry, 83 NY2d 557, 561 [1994]). The juror in question conducted Internet research on theissue whether the gunshot wound was a close contact wound or one inflicted from a distance. Atthe hearing conducted on the motion, however, the juror testified that his research disclosed noinformation that was helpful to him, that he remained confused about the issue even afterconducting his research, and that he consequently based his verdict only on the evidencepresented at the trial. We note in addition that the only juror with knowledge of the other juror'sInternet research testified at the hearing that he had made a determination concerning whetherthe gunshot wound was a close contact wound or one inflicted from a distance before learning ofthe Internet research, that the Internet research did not affect either his decision on that issue orhis verdict, and that he arrived at his verdict based on the evidence presented at the trial.Present—Scudder, P.J., Smith, Peradotto, Green and Gorski, JJ.