| People v Graham |
| 2013 NY Slip Op 04846 [107 AD3d 1296] |
| June 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vMustafa Graham, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedMarch 24, 2011 in Albany County, upon a verdict convicting defendant of the crime ofcriminal possession of a weapon in the second degree.
A jury found defendant guilty of criminal possession of a weapon in the seconddegree. Supreme Court sentenced him to a prison term of 11 years followed by five yearsof postrelease supervision. Defendant appeals.
Although defendant's conviction is supported by legally sufficient evidence, theconviction is against the weight of the evidence. As is relevant here, "[a] person is guiltyof criminal possession of a weapon in the second degree when . . . suchperson possesses any loaded firearm" outside of such person's home or place of business(Penal Law § 265.03 [3]). Here, evidence presented at trial established that apolice officer was on patrol in a marked police vehicle in the City of Albany when hedrove past defendant and another individual, Kadeem Fox, who were riding bicycles inthe opposite direction of the police vehicle. The officer, who was familiar with bothindividuals, noticed through his rearview mirror that defendant looked over his shoulderat the police vehicle numerous times, which prompted the officer to turn around. As heturned onto Sheridan Avenue, the officer observed Fox on the stairs at 269 SheridanAvenue and [*2]defendant standing about 20 to 30 feetpast that house. Upon seeing the officer, Fox ran down the stairs and then defendant andFox took off on the bicycles. The officer subsequently searched the area and discovered aloaded handgun sitting in front of 269 Sheridan Avenue. When asked about defendant'slocation relative to where the officer found the revolver, the officer testified thatdefendant "was in that general area."
Laboratory tests verified that the handgun was operable. DNA swabs taken from thetrigger and backstrap of the handgun indicated that the DNA was admixed with at leasttwo individual DNA profiles. A comparison of the mixed DNA profiles with that ofdefendant's DNA indicated that he could not be excluded as being a contributor of theDNA found on the trigger, and the DNA on the backstrap was consistent withdefendant's profile, with the statistical probability of being randomly included in thatDNA profile equaling less than one in 263 million.
Viewing this evidence in a light most favorable to the People, we find that there is avalid line of reasoning and permissible inferences from the evidence presented that couldlead a rational person to the conclusion reached by the jury that defendant possessed theweapon on the date and time alleged (see People v Bleakley, 69 NY2d 490, 495[1987]; People v Pope, 96AD3d 1231, 1234 [2012], lv denied 20 NY3d 1064 [2013]; People v Mateo, 13 AD3d987, 988 [2004], lv denied 5 NY3d 883 [2005]). Despite the elements beingsupported by some credible evidence, because a different finding would not have beenunreasonable this Court must independently "examine the evidence further," viewing it ina neutral light to see if the verdict is against the weight of the evidence (People vBleakley, 69 NY2d at 495; see People v Carter, 60 AD3d 1103, 1107 [2009], lvdenied 12 NY3d 924 [2009]).
Even accepting as true the testimony of the People's witnesses, the evidence heredoes not prove beyond a reasonable doubt that defendant possessed the handgun at thetime and place alleged. No one saw defendant with the gun; he was just near where itwas found and his DNA was on it. The officer testified that defendant was 20 to 30 feetpast the house, whereas Fox was off his bicycle and appeared to be doing something nearthe house. The officer further testified that he found the gun in front of that house, andvaguely stated that defendant was in "the general area" where the gun was found. Thisdoes not prove that defendant possessed the gun on Sheridan Avenue at that time. Basedon the testimony of the officer and the forensic scientist, it is possible thatFox—who the officer had seen directly in front of the house—could havehad the gun and left it on the ground at that time, and defendant's DNA could have beenthere from handling it previously (which may prove that defendant handled the gun atsome point, but not at the date and time alleged in the indictment) or through secondarytransfer (i.e., if Fox touched defendant and then the gun, transferring some of defendant'sDNA onto the gun). Because this scenario is equally likely to have occurred, we cannotsay that the weight of the evidence supports the verdict finding defendant guilty (seePeople v King, 265 AD2d 678, 680 [1999], lv denied 94 NY2d 904 [2000]).
Based on our determination to reverse the judgment of conviction and dismiss theindictment, we need not address defendant's remaining arguments.
Rose, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is reversed, onthe facts, and indictment dismissed.