| People v Diallo |
| 2016 NY Slip Op 02213 [137 AD3d 1681] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMohamed L. Diallo, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.),rendered February 24, 2012. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted on counts one and two of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of two counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [1] [b]; [3]). Contrary to defendant's contention, CountyCourt did not err in refusing to suppress statements defendant made to a police officerwithout receiving Miranda warnings. The court properly determined thatdefendant, who had been shot in the leg and was in the hospital awaiting treatment, wasnot in custody at the time (seePeople v Carbonaro, 134 AD3d 1543, 1546-1547 [2015]; People v Rounds, 124 AD3d1351, 1352 [2015], lv denied 25 NY3d 1077 [2015]). Viewing the evidencein light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict isagainst the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
We agree with defendant, however, that reversal is required on the ground that thecourt erred in granting the People's request to charge the jury on the issue of constructivepossession. Defendant was charged with reckless endangerment in the first degree andfour counts of criminal possession of a weapon in the second degree for his possession ofa revolver and a semiautomatic pistol, but he was convicted of the counts relating only topossession of the revolver. At trial, a witness for the People described hearing gunshotsand observing from her apartment window an individual wearing a white hoody with anobject in his hand. She saw a flash from the end of the object and heard a loud bang. Shewalked away from the window to call 911, and when she returned she saw a secondindividual in a dark shirt raise his arm while the man in the white hoody was lying on theground. The man in the dark shirt then kicked the other man in the face before the policearrived. When the police responded to the scene, they found defendant, who was wearinga white hoody and had been shot, lying down in a parking lot with a revolverapproximately five feet away from him and a semiautomatic pistol approximately 15 feetaway from him. A second man ran from the scene carrying a bag that contained money.A defense witness testified that he heard gunshots and observed someone with a darkshirt hiding against a wall, and there "appeared to be an old school revolver in his hand."The witness testified that he did not see the man in the white hoody with a weapon. DNAevidence connected defendant to the revolver, but not the semiautomatic pistol.
"To meet their burden of proving defendant's constructive possession of the[revolver], the People had to establish that defendant exercised dominion or control over[the revolver] by a sufficient level of control over the area in which [it was] found"(People v Mattison, 41 AD3d [*2]1224, 1225[2007], lv denied 9 NY3d 924 [2007] [internal quotation marks omitted]; seePeople v Manini, 79 NY2d 561, 573-574 [1992]). Here, we conclude that there is noview of the evidence that defendant had constructive possession of the revolver (see People v Nevins, 16 AD3d1046, 1047 [2005], lv denied 4 NY3d 889 [2005], cert denied 548US 911 [2006]). Defendant's "mere presence in an area where" the revolver was found"is not sufficient to establish that he exercised such dominion and control as to establishconstructive possession" (People v Knightner, 11 AD3d 1002, 1004 [2004], lvdenied 4 NY3d 745 [2004] [internal quotation marks omitted]). We further concludethat the error is not harmless inasmuch as we cannot determine if the verdict was basedupon defendant's physical possession of the revolver or his constructive possession of it(see People v Kims, 24NY3d 422, 438 [2014]; People v Martinez, 83 NY2d 26, 35 [1993], certdenied 511 US 1137 [1994]).
In light of our determination to grant a new trial, we do not consider defendant'sremaining contention regarding the sentence. Present—Carni, J.P., Lindley,DeJoseph, Nemoyer and Troutman, JJ.