People v Jones

2017 NY Slip Op 03368 [149 AD3d 1580]

April 28, 2017

Appellate Division, Fourth Department

As corrected through Wednesday, May 31, 2017

[*1]

The People of the State of New York, Respondent, v Melchi N.Jones, Appellant. (Appeal No. 2.)

The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), fordefendant-appellant.

Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.

Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered May 15,2008. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weaponin the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalpossession of a weapon in the third degree (Penal Law § 265.02 [1]), defendantcontends that the jury failed to weigh the evidence properly in determining that defendantconstructively possessed the weapon. We reject that contention. In order to establish that adefendant has constructive possession of tangible property, "the People must show that thedefendant exercised 'dominion or control' over the property by a sufficient level of control overthe area in which the contraband is found or over the person from whom the contraband isseized" (People v Manini, 79 NY2d 561, 573 [1992]; see Penal Law§ 10.00 [8]). Here, there was ample evidence from which the jury could concludethat defendant constructively possessed the gun.

The weapon was recovered during the execution of a search warrant for the downstairsapartment of a two-family residence owned by defendant. At the time the warrant was executed,defendant was the sole occupant of the apartment. Defendant was not wearing any shoes and,before he exited the apartment, he asked the police officers to give him a pair of size111/2 shoes that were located in the kitchen. The officers testified that there wereat least three other pairs of size 111/2 shoes in one of the bedrooms. Multipledocuments bearing defendant's name, including a W-2 tax form, were located inside theapartment. Additionally, defendant had been observed entering the downstairs apartment duringprior surveillance of the apartment. Viewing the evidence in light of the elements of thispossessory crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see People v Davis, 101 AD3d 1778, 1779-1780 [2012], lvdenied 20 NY3d 1060 [2013];People v Holley, 67 AD3d 1438, 1439 [2009], lv denied 14 NY3d 801 [2010];see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

Contrary to defendant's further contention, County Court properly refused to suppressevidence seized by the police inasmuch as the confidential informant's existence and basis ofknowledge were sufficiently established at the in camera Darden hearing (see Peoplev Darden, 34 NY2d 177, 181 [1974]). Following our review of the sealed transcript of theDarden hearing, as well as the court's summary report, we conclude that the courtproperly determined that "the informant existed and that he provided the information to thepolice concerning the [presence of a gun] at the specified location" (People v Wilson, 48 AD3d 1099,1100 [2008], lv denied 10 NY3d 845 [2008]; see People v Santiago, 142 AD3d 1390, 1390-1391 [2016], lvdenied 28 NY3d 1127 [2016]; People v Brown [appeal No. 1], 93 AD3d 1231, 1231[2012], lv denied 19 NY3d 958 [2012]). Present—Centra, J.P., Peradotto, Lindley,Curran and Scudder, JJ.