| People v Graham |
| 2016 NY Slip Op 02866 [138 AD3d 1242] |
| April 14, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Raquad Graham, Appellant. |
Carolyn B. George, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered April29, 2014 in Albany County, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the second degree.
Defendant was charged with criminal possession of a weapon in the second degreebased on allegations that he discarded a loaded firearm while being pursued by thepolice. Following a jury trial, he was convicted as charged and sentenced, as a secondviolent felony offender, to a prison term of 13
Defendant contends that the verdict is not supported by legally sufficient evidenceand is against the weight of the evidence because the People failed to prove constructivepossession. In conducting a legal sufficiency analysis, we view the evidence in the lightmost favorable to the People and evaluate "whether there is any valid line of reasoningand permissible inferences which could lead a rational person to the conclusion reachedby the jury on the basis of the evidence at trial and as a matter of law satisfy the proofand burden requirements for every element of the crime charged" (People vBleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Cabey,85 NY2d 417, 420 [1995]). As relevant here, a person is guilty of criminal possession ofa weapon in the second degree when he or she possesses any loaded firearm outside ofhis or her home or place of business (see Penal Law § 265.03 [3])."Constructive possession can be demonstrated where there is evidence—eitherdirect or circumstantial—that [the] defendant exercised 'dominion and control overthe weapon or the area [*2]in which it wasfound' " (People vButler, 126 AD3d 1122, 1123 [2015], lv denied 25 NY3d 1199 [2015],quoting People v Bellamy,118 AD3d 1113, 1114 [2014], lv denied 25 NY3d 1159 [2015]; see People v Dawson, 110AD3d 1350, 1352 [2013], lv denied 23 NY3d 1035 [2014]). "Suchpossession . . . 'may be found even though others have access to thecontraband or the area where it is located' " (People v Rodwell, 122 AD3d 1065, 1067 [2014], lvdenied 25 NY3d 1170 [2015], quoting People v Perry, 116 AD3d 1253, 1254 [2014]; see People v Stewart, 95 AD3d1363, 1364 [2012], lv denied 19 NY3d 1001 [2012]).
At trial, Albany City Police Officer Steven Sayre testified that he responded to aradio call indicating that defendant, for whom a parole warrant had been issued, had beenspotted in a nearby area and that, upon locating defendant, he exited his vehicle anddirected defendant to raise his hands and get on the ground. Sayre asserted that, althoughdefendant initially complied and raised his hands, defendant ultimately turned around,dropped his hands to his waistband and fled. Sayre stated that he pursued defendantthrough the rear of a vacant lot and observed him jump over a fence and, as defendantapproached another portion of the fence, drop to the ground and begin "makingmovements with his hands grabbing towards his waistband or underneath his body."Following defendant's apprehension, a functional, loaded handgun was discoveredduring a grid search of the path that defendant had traversed. Sayre testified that theweapon was found in the area where defendant had dropped to the ground. DNAretrieved from the weapon was too complex for comparison, but was consistent withDNA from at least two donors, at least one of which was male. Viewing this evidence inthe light most favorable to the People, we find that a valid line of reasoning andpermissible inferences could lead a rational person to the conclusion reached by the jurythat defendant constructively possessed the handgun retrieved after his apprehension (see People v Graham, 107AD3d 1296, 1297-1298 [2013]; People v Pope, 96 AD3d 1231, 1234 [2012], lvdenied 20 NY3d 1064 [2013]). Further, although a contrary verdict would not havebeen unreasonable if the jury had believed the defense's theory that the weapon was a"community gun" shared by gang members and stashed in the vacant lot, viewing theevidence in a neutral light and according deference to the jury's credibility assessments,we do not find that the verdict is against the weight of the evidence (see People vButler, 126 AD3d at 1123; People v Mateo, 13 AD3d 987, 988 [2004], lvdenied 5 NY3d 883 [2005]; compare People v Graham, 107 AD3d at1298).
Defendant also argues that he received ineffective assistance of counsel because,among other things, his former attorney filed an untimely motion to dismiss theindictment on the ground that the People did not provide adequate notice of the grandjury presentment so as to "accord . . . defendant a reasonable time toexercise his right to appear as a witness" (CPL 190.50 [5] [a]). The record establishesthat, prior to indictment, defendant was represented by the Public Defender's office, thatthe People provided that office with notice of the grand jury proceeding and that attemptswere made to notify defendant of the proceeding. However, it is not clear on this recordwhether the notice afforded defendant an ample opportunity to consult with his counselabout the possibility of appearing before the grand jury, as was his right (see Hurrell-Harring v State of NewYork, 15 NY3d 8, 21-22 [2010]; see also People v Chapman, 69 NY2d497, 500 [1987]), and, if he did consult with counsel, whether they reached an agreementon that matter. As the answers to these factual questions, and others, are outside therecord, defendant's claim would require a CPL 440.10 motion (see People vHarrison, 304 AD2d 376, 377 [2003], lv denied 100 NY2d 621 [2003]; see also People v Lasher, 74AD3d 1474, 1475 [2010], lv denied 15 NY3d 894 [2010]; People vMcMoore, 203 AD2d 612, 614 [1994], lv denied 86 NY2d 798 [1995],cert denied 516 US 1096 [1996]). Moreover, we note that, without more, thefailure to timely file a motion to dismiss the indictment on CPL 190.50 (5) grounds doesnot constitute ineffective assistance of counsel (see People v Wiggins, 89 NY2d872, 873 [1996]; People vHogan, 118 AD3d 1263, 1264 [2014], affd 26 NY3d 779 [2016];People v [*3]Harrison, 304 AD2d at 377). Withregard to his remaining claims of ineffective assistance of counsel, upon review of therecord as a whole, we are satisfied that defendant received meaningful representation (see People v DeCarr, 130AD3d 1365, 1368 [2015], lv denied 26 NY3d 1008 [2015]; People v Griffin, 128 AD3d1218, 1220 [2015]).
Further, we cannot say that Supreme Court abused its discretion or that extraordinarycircumstances exist that warrant a modification of defendant's lawful sentence, whichwas below the statutory maximum (see Penal Law §§ 70.04 [3][b]; 265.03 [3]; People vEdwards, 124 AD3d 988, 992 [2015], lv denied 25 NY3d 1201 [2015]).Despite his young age, defendant was a second violent felony offender, having beenpreviously convicted of criminal possession of a weapon in the second degree, was onparole at the time of this offense and had previously violated parole.
Defendant's remaining contentions, including that the indictment was jurisdictionallydefective and that Supreme Court abused its discretion in admitting opinion testimonyfrom the DNA analyst, have been thoroughly examined and found to be withoutmerit.
Peters, P.J., Garry, Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.