| People v Ward |
| 2013 NY Slip Op 01976 [104 AD3d 1323] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vTillman Ward, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered July 20, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]),defendant contends that Supreme Court abused its discretion in consolidating twoindictments for trial (see Peoplev Rios, 72 AD3d 1489, 1490-1491 [2010], lv denied 15 NY3d 777[2010]). We reject that contention. Although the indictments are based upon differentcriminal transactions, the offenses charged are "the same or similar in law" (CPL 200.20[2] [c]), and defendant failed to establish that there was "[s]ubstantially more proof onone or more [of the] joinable offenses than on others and [that] there [was] a substantiallikelihood that the jury would be unable to consider separately the proof as it relat[ed] toeach offense" (CPL 200.20 [3] [a]; see generally People v Lane, 56 NY2d 1, 7-8[1982]). Indeed, the fact that the jury convicted defendant on the charge from oneincident but was unable to reach a verdict with respect to the charge from the otherincident "reflects that the jury was able to consider each count as a separate and distinctincident" (People v Reed, 212 AD2d 962, 962 [1995], lv denied 86NY2d 739 [1995]).
We also reject defendant's contention that the evidence is legally insufficient withrespect to the element of possession. "Defendant's possession of the weapon may beestablished through the doctrine of constructive possession, which is based on theexercise of dominion and control over the area in which an item is found" (People v Carter, 60 AD3d1103, 1106 [2009], lv denied 12 NY3d 924 [2009]). Here, the policerecovered the loaded handgun from the floor under the driver's seat of a vehicle, anddefendant admitted to the police that he drove the automobile to the location where it wassearched. The statutory presumption of possession set forth in Penal Law § 265.15(3) provides that "[t]he presence in an automobile, other than a stolen one or a publicomnibus, of any firearm . . . [or] defaced firearm . . . ispresumptive evidence of its possession by all persons occupying such automobile at thetime such weapon . . . is found." Furthermore, defendant admitted to thepolice that he had possessed the weapon and had placed it under the driver's seat. [*2]That admission was confirmed by "DNA samples takenfrom the handgun [that] were consistent with defendant's DNA, from which an inferencecould be made that defendant had physically possessed the gun at some point in time" (People v Robinson, 72 AD3d1277, 1278 [2010], lv denied 15 NY3d 809 [2010]; see People v Long, 100 AD3d1343, 1344 [2012]). We thus conclude that the evidence is legally sufficient toestablish the element of possession (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Contrary to defendant's further contention, viewing the evidence inlight of the elements of the crime as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495). Even assuming, arguendo,that a different finding would not have been unreasonable, we conclude that the jury didnot fail to give the evidence the weight it should be accorded (see id.).
We reject defendant's further contention that the court erred in denying his request toinstruct the jury on the defense of temporary innocent possession of the handguninasmuch as "there was no reasonable view of the evidence upon which the jury couldhave found that the defendant's possession was innocent" (People v Johnson, 30 AD3d439, 439 [2006], lv denied 7 NY3d 813 [2006]). Such an instruction iswarranted where there is "proof in the record showing a legal excuse for [defendant]having the weapon in his possession as well as facts tending to establish that, oncepossession has been obtained, the weapon had not been used in a dangerous manner"(People v Williams, 50 NY2d 1043, 1045 [1980]). Here, however, there was nosuch proof inasmuch as the People established that defendant took the weapon fromanother person and hid it under the driver's seat of the car he was driving, "and [that] hemade no effort to turn the weapon over to the police after secreting it" (People vHanley, 227 AD2d 144, 145 [1996]). That evidence "is 'utterly at odds with. . . [a] claim of innocent possession' " (People v Snyder, 73 NY2d900, 902 [1989], quoting Williams, 50 NY2d at 1045).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Peradotto, Lindley, Valentino and Whalen, JJ.