| People v Rodriguez |
| 2014 NY Slip Op 08192 [122 AD3d 1425] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vEmmanuel D. Rodriguez, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo-McLaughlin ofcounsel), for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered April 30, 2012. The judgment convicted defendant, upon a nonjury verdict, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trialof criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]), defendant contends that the evidence is legally insufficient toestablish his guilt and that the verdict is against the weight of the evidence. Morespecifically, defendant contends that, although he admittedly possessed a loaded .38caliber handgun for which he did not have a permit, the People failed to disprove hisdefense of temporary and innocent possession of the weapon. We reject defendant'scontentions and affirm.
Defendant, a six-time felon and admitted gang member, testified at trial that, on thenight in question, he went to a bar in Buffalo with a friend named A.J., who subsequentlybecame intoxicated and argumentative. After A.J. was removed from the bar by abouncer for misbehavior, defendant heard A.J. say something about getting a gun. A.J.then entered a vehicle with another person whom defendant did not know. Defendantfurther testified that, while the vehicle was stopped at the intersection outside the bar, hehimself approached the vehicle on foot and entered the backseat, where he saw on thefloor a black sock that contained a loaded handgun. Defendant explained that he tookpossession of the weapon because he was concerned that A.J. might use it unlawfullyagainst someone. When a uniformed police officer approached the vehicle momentslater, defendant said "I have something on me but it's not mine." Defendant thus contendsthat his possession of the weapon was temporary and innocent.
Defendant's testimony, however, was contradicted in relevant part by that of thebouncer who removed A.J. from the bar and observed defendant approach the vehicle.The bouncer, an off-duty police officer, testified that defendant was carrying whatappeared to be a black pouch as he approached the vehicle, and that defendant wasstopped and frisked by the uniformed officer before he was able to enter thevehicle. That testimony was corroborated by the uniformed officer, who testified thatdefendant did not enter or reach inside the vehicle. According to the officer, defendanthad a black pouch in his pocket as defendant approached the vehicle. That black pouchcontained the weapon that defendant was charged with possessing.
"A person may be found to have had temporary and lawful possession of a weaponif, for example, 'he found the weapon shortly before his possession of it was discoveredand he intended to turn it over to the authorities' " (People v DeJesus, 118 AD3d1340, 1341 [2014], lv denied 23 NY3d 1061 [2014], quoting People vAlmodovar, 62 NY2d 126, 130 [1984]). Here, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we[*2]conclude that the testimony of the prosecutionwitnesses as outlined above is legally sufficient to establish that defendant did not findthe weapon in the vehicle shortly before his possession of it was discovered, and that hispossession of the weapon was therefore not temporary and innocent (see People v Crawford, 96AD3d 964, 964-965 [2012], lv denied 20 NY3d 931 [2012]).
Moreover, viewing the evidence in light of the elements of the crime in this nonjurytrial (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]). Even assuming, arguendo, that a different verdict would not have beenunreasonable, we conclude that it cannot be said that County Court failed to give theevidence the weight it should be accorded (see People v Kalen, 68 AD3d 1666, 1667 [2009], lvdenied 14 NY3d 842 [2010]; see generally Bleakley, 69 NY2d at 495).Generally, "[w]e accord great deference to the resolution of credibility issues by the trierof fact 'because those who see and hear the witnesses can assess their credibility andreliability in a manner that is far superior to that of reviewing judges who must rely onthe printed record' " (People v Ange, 37 AD3d 1143, 1144 [2007], lv denied9 NY3d 839 [2007], quoting People v Lane, 7 NY3d 888, 890 [2006]), and we perceiveno basis in the record for disturbing the court's credibility determinations in this case.Present—Scudder, P.J., Peradotto, Lindley, Sconiers and Valentino, JJ.