| People v Stewart |
| 2012 NY Slip Op 03477 [95 AD3d 1363] |
| May 3, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Chance N.Stewart, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered June 22, 2009, upon a verdict convicting defendant of the crime ofcriminal possession of a weapon in the third degree.
Following an incident in 2008 in which defendant entered a private residence, assaulted afemale victim therein, stole items from her—allegedly at gunpoint—and then fled toa hotel room, defendant was charged by indictment with robbery in the second degree andcriminal possession of a weapon in the third degree. A jury trial scheduled to begin on March 31,2009 was adjourned until April 7, 2009 and, on March 30, 2009, a pool of potential jurors wasdirected to appear in court on April 7. Although 11 jurors were selected and sworn on April 7,the following day County Court determined that it had violated Judiciary Law § 525 byrequiring the pool of jurors to serve longer than five court days. When defendant refused towaive the violation, the court declared a mistrial. Following the subsequent jury trial, defendantwas convicted of criminal possession of a weapon in the third degree only (see Penal Law§ 265.02 [5] [ii]). After defendant unsuccessfully moved to set aside the verdict, CountyCourt sentenced him, as a second violent felony offender, to a prison term of 6½ years,with five years of postrelease supervision. Defendant appeals.[*2]
The verdict was based upon legally sufficient evidenceand was not against the weight of the evidence. Defendant concedes that he had been convictedof a felony within five years of the instant incident and that the hotel room in which the gun wasfound was not his home or his place of business (see Penal Law § 265.02 [5] [ii]);he disputes, however, that the evidence established that he possessed the gun. While there is noevidence that defendant actually possessed the gun in the hotel room, possession can beconstructive, which is established by either direct or circumstantial evidence that defendant haddominion and control over the area in which the gun was found (see People v Pinkney, 90 AD3d1313, 1314 [2011]).
Here, there was evidence at trial that when police searched the hotel room in whichdefendant was located, along with two other individuals, they discovered the items stolen fromthe victim, as well as a gun—which was tested and found to be operable—and abandana matching the description of the bandana that the victim reported that her attacker hadworn. One of the individuals in the hotel room with defendant testified that defendant had givenhim money and told him to reserve and pay for the room because defendant did not haveidentification. When defendant entered the hotel room, he was carrying a bag and was alone inthe room for several hours. When the police arrived on the scene, defendant ran in and out of thebathroom several times. The gun and the items stolen from the victim were later found by policehidden in a ceiling tile in the bathroom. At trial, defendant admitted taking the items from thevictim, but denied hiding them in the ceiling or possessing a gun. Although defendant was one ofseveral individuals with access to the hotel room, constructive possession may be found "eventhough others may have access to [the] premises" (People v Pinkney, 90 AD3d at1314-1315; see People v Shoga, 89AD3d 1225, 1227 [2011], lv denied 18 NY3d 886 [2012]; People v Echavarria, 53 AD3d859, 862 [2008], lv denied 11 NY3d 832 [2008]). Viewed in the light most favorableto the People, the evidence offered at trial was legally sufficient to establish that defendantconstructively possessed the gun (seePeople v Carter, 74 AD3d 1375, 1377 [2010], lv denied 15 NY3d 772 [2010]).Furthermore, although defendant and his witnesses denied that he possessed the gun, viewing theevidence in a neutral light and according deference to the jury's credibility determinations, we donot find the verdict to be against the weight of the evidence (see People v Bleakley, 69NY2d 490, 495 [1987]).
As for defendant's remaining contentions, because a juror's service begins on the day onwhich he or she is first required to appear, including any day on which he or she is on telephonestandby service, County Court properly dismissed the 11 jurors who had been sworn on April 7,2009 because they had served in excess of the five court days permitted by Judiciary Law §525 (see 22 NYCRR 128.8 [a], [b]; 128.9 [b]). Because defendant did not object to thecourt's declaration of a mistrial, although he had the opportunity to do so, he thereby impliedlyconsented to it (see Matter of Marte vBerkman, 16 NY3d 874, 875-876 [2011]). Defendant's double jeopardy argument iswithout merit because such protection is not triggered until a full jury has been impaneled andsworn (see CPL 40.30 [1]; Matter of Hoffler v Jacon, 72 AD3d 1183, 1184-1185 [2010],appeal dismissed 15 NY3d 768 [2010]; People v Chandler, 30 AD3d 161, 161 [2006], lv denied 7NY3d 786 [2006]).
County Court did not abuse its discretion by considering during sentencing the victim'stestimony regarding the alleged robbery, inasmuch as the court was entitled to take "into accountall of the relevant facts and circumstances surrounding the crime of which [defendant] wasconvicted" (People v La Veglia, 215 AD2d 836, 837 [1995]). Defendant's challenge tostatements made by the prosecutor during summation is not preserved for review, inasmuch as noobjections to such were made at trial (see People v Head, 90 AD3d 1157, 1158 [2011]). Finally, [*3]his contention that counsel's failure to object to such statementsdeprived him of his right to the effective assistance of counsel is, based on this record,unpersuasive (see People v Fisher,89 AD3d 1135, 1139 [2011], lv denied 18 NY3d 883 [2012]).
Rose, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.