| People v Kelly |
| 2015 NY Slip Op 09759 [134 AD3d 1571] |
| December 31, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLouis Kelly, Jr., Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Bridget L. Field of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered December 1, 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 unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofcriminal possession of a weapon in the second degree (Penal Law § 265.03[3]), defendant contends that the evidence is legally insufficient to support the convictionbecause the People failed to present evidence that he constructively possessed thehandgun while he was a passenger in the minivan in which the handgun was found. Wereject that contention. Defendant admitted to a police investigator that he possessed thehandgun for at least two months prior to the time that it was found, he was the onlybackseat passenger in the minivan, and the handgun was found in plain view protrudingfrom a pocket on the back of the front passenger seat. We conclude that the evidence,viewed in the light most favorable to the People, is legally sufficient to supportdefendant's conviction on a theory of either actual or constructive possession (see generally People vDanielson, 9 NY3d 342, 349 [2007]).
Viewing the evidence in light of the elements of the crime of criminal possession of aweapon in the second degree as charged to the jury (see id.), we reject defendant'sfurther contention that the verdict is against the weight of the evidence with respect tothat crime (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Evenassuming, arguendo, that an acquittal would not have been unreasonable, we note that,where, as here, "witness credibility is of paramount importance to the determination ofguilt or innocence, [we] must give [g]reat deference . . . [to the jury's]opportunity to view the witnesses, hear the testimony and observe demeanor" (People v Harris, 15 AD3d966, 967 [2005], lv denied 4 NY3d 831 [2005] [internal quotation marksomitted]; see Bleakley, 69 NY2d at 495). We decline to disturb the jury'sresolution of the conflict between the testimony of the police investigator and thetestimony of defendant. The jury's resolution of that conflict was reasonable, particularlyin view of the fact that defendant's testimony contradicted the statements he hadpreviously made to the police investigator at the time of his arrest.
We agree with defendant that County Court failed to make the proper two-partinquiry pursuant to People v Ventimiglia (52 NY2d 350 [1981]) with respect totestimony that defendant told the police that he did not wish to reduce his statement towriting because, "based on his experience, nothing good would come of that," which wasan apparent reference to prior contact with the criminal justice system. The court shouldhave precluded that testimony, which "did not relate to a relevant and material issue inthe case" (People v Judd, 96AD3d 784, 784 [2012], lv denied 19 NY3d 998 [2012]). Nonetheless, weconclude that the error in admitting the testimony is harmless, inasmuch as the evidenceof defendant's guilt is overwhelming and there is no significant probability that [*2]the error contributed to his conviction (see id.;see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Defendant also contends that the court erred in its Sandoval ruling bypermitting the People to question him concerning a prior felony conviction, when it waslater discovered, prior to sentencing, that defendant had been adjudicated a youthfuloffender on the underlying charge (see generally People v Gray, 84 NY2d 709,712 [1995]). By failing to object to the court's ultimate Sandoval ruling,defendant failed to preserve his contention for our review (see People v Smith, 90 AD3d1565, 1566 [2011], lv denied 18 NY3d 998 [2012]), and we decline toexercise our power to review it as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]).
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Smith, J.P., Peradotto, Lindley, Whalen and DeJoseph, JJ.