| People v Davidson |
| 2013 NY Slip Op 07747 [111 AD3d 848] |
| November 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tristan Davidson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Knopf, J.), rendered November 8, 2010, convicting him of criminal possession of aweapon in the second degree, unlawful possession of marijuana, unlawfully operating ordriving a motor vehicle on a public highway, and improper equipment of avehicle—defective brake lamp, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the People failed to establish the chain of custody forthe ammunition recovered from a gun found in a car he was driving is unpreserved forappellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19[1995]; People v Gibson,106 AD3d 834, 835 [2013]). In any event, the contention is without merit. A partyseeking to introduce a fungible item of real evidence must show that the evidence offeredis identical to that involved in the crime, and has not been tampered with (see Peoplev Julian, 41 NY2d 340, 343 [1977]). "Proof of a complete chain of custody is oneaccepted technique for showing the authenticity of a fungible item of real evidence"(id.), and "generally requires that all those who have handled the item identify itand testify to its custody and unchanged condition" (People v Connelly, 35 NY2d171, 174 [1974] [internal quotation marks omitted]). However, failure to establish thechain of custody of such an item may be excused where the circumstances providereasonable assurances of the identity and unchanged condition of the evidence (seePeople v Julian, 41 NY2d at 343). In these circumstances, gaps in the chain ofcustody go to the weight of the evidence, not its admissibility (see People v Hawkins, 11NY3d 484, 494 [2008]; People v Gibson, 28 AD3d 576, 576 [2006]). Here, thetestimony presented by the People established circumstances providing reasonableassurances of the identity and unchanged condition of the ammunition (see People vHawkins, 11 NY3d at 494; People v McLaurin, 196 AD2d 511, 511 [1993];People v Wilkerson, 167 AD2d 662 [1990]). Accordingly, the Supreme Courtproperly admitted the ammunition into evidence.
The defendant's contention that the Supreme Court permitted the People to elicitimproper lay opinion testimony from the arresting officer is unpreserved for appellatereview (see [*2]CPL 470.05 [2]; People vValentin, 289 AD2d 172, 173 [2001]) and, in any event, is without merit.
We agree with the defendant that the Supreme Court improperly precluded him fromtestifying, on direct examination, in support of his defense of temporary innocentpossession, as to what he intended to do with the gun (see People v Almodovar,62 NY2d 126, 130 [1984]; People v Pitt, 84 AD3d 1275, 1276 [2011]). However, thedefendant testified as to what he intended to do with the gun on cross-examination, andunder the circumstances presented, the error was harmless, as the evidence of thedefendant's guilt, without reference to the error, was overwhelming, and there was noreasonable possibility that the error contributed to the defendant's conviction of criminalpossession of a weapon in the second degree (see People v Crimmins, 36 NY2d230, 237 [1975]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Mastro, J.P., Leventhal, Lott and Roman, JJ., concur.