| People v Boyd |
| 2016 NY Slip Op 08646 [145 AD3d 1481] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vKenneth L. Boyd, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Sullivan & Cromwell LLP,New York City (John G. McCarthy of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), renderedJanuary 16, 2013. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree, criminal possession of a weapon in thethird degree (two counts), criminal possession of a controlled substance in the thirddegree and criminally using drug paraphernalia in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]), criminal possession of a controlled substance in the thirddegree (§ 220.16 [1]), and two counts each of criminal possession of aweapon in the third degree (§ 265.02 [1], [3]), and criminally using drugparaphernalia in the second degree (§ 220.50 [2], [3]).
Defendant's conviction arises from an incident that occurred when police officerswere conducting surveillance of a house following a shooting unrelated to this incident.An officer observed defendant entering the house with "a heavy object inside of hispocket . . . that he was holding onto." About an hour later, another officerconfronted defendant and others as they exited the house. When asked to explain hispresence at the house, defendant told the officer, "I live here." While the officer began todetain one of defendant's companions, defendant reentered the house for "about five orten seconds." The officers thereafter obtained a search warrant, and, during the ensuingsearch of the house, they found a .40 caliber handgun hidden under a chair near theentrance to the house. In addition, the officers found cocaine, plastic baggies, razors, anda digital scale of a kind used in narcotics trafficking. Some of the drugs and drugparaphernalia were found on the same shelves or in the same cabinets as documentsbearing defendant's name, including a tax document listing the address of the house asdefendant's address.
Contrary to defendant's contention, we conclude that his conviction of criminalpossession of a weapon in the second degree and two counts of criminal possession of aweapon in the third degree is supported by legally sufficient evidence inasmuch as thePeople established that he had constructive possession of the gun. It is well establishedthat, in reviewing the legal sufficiency of the evidence, we must "determine whether anyvalid line of reasoning and permissible inferences could lead a rational person to theconclusion reached by the [factfinder] on the basis of the evidence at trial, viewed in thelight most favorable to the People" (People v Williams, 84 NY2d 925, 926[1994]). "To meet their burden of proving defendant's constructive possession of the[gun], the People had to establish that defendant exercised dominion or control over [thegun] by a sufficient level of control over the area in which [it was] found" (People v Lawrence, 141 AD3d1079, 1082 [2016] [internal quotation marks omitted]; see Penal Law§ 10.00 [8]). Defendant contends that there is legally insufficient evidenceof constructive possession because other people had access to the area where the gun wasfound. We reject that contention inasmuch as it is not necessary to establish thatdefendant had "exclusive access" to the area (People v Nichol, 121 AD3d 1174, 1177 [2014], lvdenied 25 NY3d 1205 [2015]), and "several individuals may constructively possessan object simultaneously, provided each individual exercises dominion and control overthe object or the area in which the object is located" (People v Smith, 215 AD2d940, 941 [1995], lv denied 86 NY2d 802 [1995]; see generally People vTorres, 68 NY2d 677, 679 [1986]). Moreover, although a defendant's "merepresence" in the location where contraband is found "is not sufficient to establish that heexercised such dominion and control as to establish constructive possession" (People v Diallo, 137 AD3d1681, 1682 [2016] [internal quotation marks omitted]), we conclude that theevidence in this case "went beyond defendant's mere presence in the residence. . . and established 'a particular set of circumstances from which a jurycould infer possession' " (People v McGough, 122 AD3d 1164, 1166 [2014], lvdenied 24 NY3d 1220 [2015], quoting People v Bundy, 90 NY2d 918, 920[1997]).
Contrary to defendant's further contention, we conclude that the conviction withrespect to the remaining counts of the indictment is supported by legally sufficientevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Inaddition, viewing the evidence in light of the elements of the crimes as charged to thejury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence with respect to those counts (see generally Bleakley,69 NY2d at 495).
Finally, " '[b]y failing to object to County Court's ultimate Sandovalruling, defendant failed to preserve for our review his present challenge to thatruling' " (People vMitchell, 132 AD3d 1413, 1416 [2015], lv denied 27 NY3d 1072[2016]), and we decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).Present—Carni, J.P., DeJoseph, NeMoyer, Troutman and Scudder, JJ.