| People v Campbell |
| 2012 NY Slip Op 06479 [98 AD3d 1310] |
| September 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CarlCampbell, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered November 20, 2008. The judgment convicted defendant, upon a nonjury verdict, ofcriminal possession of a weapon in the second degree and criminal possession of a weapon in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following a bench trial, ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) andcriminal possession of a weapon in the third degree (§ 265.02 [1]), defendant contends thatthe conviction is not supported by legally sufficient evidence because the People failed toestablish that he had actual or constructive possession of the weapon. We reject that contention(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The People presentedevidence that the police found a loaded gun on the floor of the rear passenger seat of theautomobile in which defendant was a passenger. The statutory presumption of possession setforth in Penal Law § 265.15 (3) provides that "[t]he presence in an automobile, other thana stolen one or a public omnibus, of any firearm . . . [or] defaced firearm. . . is presumptive evidence of its possession by all persons occupying suchautomobile at the time such weapon . . . is found." The statutory presumptionestablishes a prima facie case against a defendant, which presumption he or she may rebut byoffering evidence (see People v Lemmons, 40 NY2d 505, 510 [1976]).
In People v Wilt (105 AD2d 1089, 1090 [1984]), this Court concluded that there wasno " 'rational connection' " between the discovery of the gun in the trunk of the vehicle in whichthe defendant was riding and his presumed possession of the gun. We noted that defendant hadtestified in his own defense that he had only been in the vehicle for five or six minutes to look forhis girlfriend and did not know that a gun was inside the trunk. Defendant also testified that hehad never looked in the trunk of the vehicle, which was missing its trunk lock. We further notedthat defendant's testimony was corroborated by several witnesses (see id. at 1090). Here,unlike in Wilt, the weapon was found on the floorboards of the right rear passenger seat,and defendant was in that passenger seat. Defendant chose not to testify in his own defense anddid not call any witnesses in order to rebut the presumption. In our view, it was rational topresume that [*2]defendant had both the ability and the intent toexercise dominion and control over the weapon, and thus the evidence is legally sufficient toestablish that there was a " 'rational connection' " between the discovery of the weapon anddefendant's presumed possession of the weapon (id.; see Leary v United States,395 US 6, 33-34 [1969]; People v Glenn, 185 AD2d 84, 89-90 [1992]).
Also contrary to defendant's contention, viewing the evidence in light of the elements of thecrimes in this nonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally Bleakley, 69 NY2d at 495). Even assuming,arguendo, that a different finding would not have been unreasonable, we conclude that SupremeCourt did not fail to give the evidence the weight it should be accorded (see id.).Present—Scudder, P.J., Smith, Fahey, Lindley and Martoche, JJ.