| People v Rodwell |
| 2014 NY Slip Op 08062 [122 AD3d 1065] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJay Rodwell, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered March25, 2011 in Albany County, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the fourth degree.
On October 16, 2009, police officers were dispatched to the 300 block of First Streetin the City of Albany in response to a report of shots fired. A resident of theneighborhood informed the officers that he had observed individuals that he believedwere involved in the shooting enter a two-family house located at 330 First Street. Twoofficers were assigned to the back of the house while two other officers knocked on thefront door. One of the officers located in the back of the house was looking in the rearwindow when he observed defendant—who he knew from previousinteractions—and another individual go into the basement and return a brief timelater. A subsequent search of the basement revealed a 9 millimeter pistol, a box of 9millimeter ammunition and a .22 caliber rifle hidden in a sump well. Defendant wasthereafter charged with criminal possession of a weapon in the second degree regardingthe pistol and criminal possession of a weapon in the fourth degree regarding the rifle.Following a jury trial, defendant was acquitted of criminal possession of a weapon in thesecond degree, but was found guilty of criminal possession of a weapon in the fourthdegree, a misdemeanor (see Penal Law § 265.01 [1]). SupremeCourt thereafter sentenced defendant to six months in jail. Defendant now appeals andwe affirm.
We reject defendant's contention that the verdict is not based upon legally sufficientevidence or that it is not in accord with the weight of the evidence. A person is guilty ofcriminal possession of a weapon in the fourth degree when such person "possesses anyfirearm" (Penal Law § 265.01 [1]). As relevant here, a firearm is defined as"any weapon made from a shotgun or rifle whether by alteration, modification, orotherwise if such weapon as altered, modified, or otherwise has an overall length of lessthan [26] inches" (Penal Law § 265.00 [3] [d]). It is undisputed that thesubject rifle had been altered by the removal of the rifle stock, resulting in the weaponmeasuring 24
As to possession, " '[w]here, as here, the People proceed upon the theory ofconstructive possession, they bear the burden of establishing that defendant exerciseddominion and control over the contraband or the area where the contraband wasfound' " (People vPerry, 116 AD3d 1253, 1254 [2014], quoting People v Dawson, 110 AD3d1350, 1352 [2013], lv denied 23 NY3d 1035 [2014]; see People v Stewart, 95 AD3d1363, 1364 [2012], lv denied 19 NY3d 1001 [2012]). Such possession "maybe established through either direct or circumstantial evidence, and may be found eventhough others have access to the contraband or the area where it is located" (People vPerry, 116 AD3d at 1254; see People v Pinkney, 90 AD3d 1313, 1314-1315[2011]).
Here, the trial evidence established that defendant was seen entering the basementmoments before the rifle was discovered there. Moreover, the manager of a sportinggoods store testified that the serial number of the rifle matched that of a rifle that he hadsold to defendant a month prior to this incident. Despite the fact that others had access tothe basement, when we view the evidence presented in the light most favorable to thePeople, we conclude that it was legally sufficient to establish that defendantconstructively possessed the rifle (see People v Stewart, 95 AD3d at 1364;People v Pinkney, 90 AD3d at 1315). Further, even if a different verdict wouldnot have been unreasonable, viewing the evidence in a neutral light and accordingappropriate deference to the jury's credibility determinations, we do not find the verdictto be against the weight of the evidence (see People v Bleakley, 69 NY2d 490,495 [1987]; People v Perry, 116 AD3d at 1255; People v Pinkney, 90AD3d at 1315).
We also reject defendant's contention that Supreme Court should have suppressedoral and written statements he made to police. "Whether a statement is voluntary is afactual question to be determined from the totality of the circumstances" (People v Heesh, 94 AD3d1159, 1160 [2012], lv denied 19 NY3d 961 [2012] [citations omitted]; see People v Mattis, 108 AD3d872, 874 [2013], lv denied 22 NY3d 957 [2013]). Here, the recordestablishes that defendant was read his Miranda rights before making anystatements, and he acknowledged that he understood his rights, made no request to speakto an attorney and agreed to speak to the police investigators. His statements were latermemorialized in a written document, which defendant read and signed, againacknowledging his understanding of his rights and that his statements were voluntary.Thus, Supreme Court properly determined that defendant's statements were voluntarilymade (see People vWhitted, 117 AD3d 1179, 1181 [2014], lv denied 23 NY3d 1026[2014]; People v Mattis, 108 AD3d at 874; People v Tompkins, 107 AD3d 1037, 1038 [2013], lvdenied 22 NY3d 1044 [2013]).
Defendant's remaining contentions do not require extended discussion. Defendant'sargument that the verdict is repugnant is unpreserved for our review in light of his failureto object prior to the jury being discharged (see People v Satloff, 56 NY2d 745,746 [1982]; People vHawkins, 110 AD3d 1242, 1244 [2013], lv denied 22 NY3d 1041[2013]; People v Coville, 73AD3d 1232, 1232-1233 [2010]; see also People v Muhammad, 17 NY3d 532, 541 n 5[2011]). Were we to review defendant's argument, we would find it to be lacking inmerit. As to the sentence imposed, we initially reject defendant's assertion that SupremeCourt was required to afford him youthful offender status pursuant to CPL 720.20 (1)(b), as the record indicates that he does not meet the statutory requirement of having beenconvicted in a local criminal court (see CPL 10.10 [3]; People v RobertZ., 134 Misc 2d 555, 557 [1986]). Moreover, given defendant's criminal history, wecannot say that Supreme Court abused its discretion in denying him youthful offenderstatus (see CPL 720.20 [1]; People v Fernandez, 106 AD3d 1281, 1286 [2013]; People v Carter, 60 AD3d1103, 1107 [2009], lv denied 12 NY3d 924 [2009]). Finally, inasmuch asdefendant has completed his six-month sentence, his harsh and excessive claim is moot(see People v Olmstead, 111AD3d 1065, 1065 [2013]; People v Fusco, 91 AD3d 984, 985 [2012]; People v Nieves, 89 AD3d1285, 1287 [2011]).
Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.