| People v DeCapua |
| 2017 NY Slip Op 04705 [151 AD3d 1746] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Franklin DeCapua, Appellant. |
Mark D. Funk, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester, for respondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedOctober 21, 2009. The judgment convicted defendant, upon a jury verdict, of criminal possessionof stolen property in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial of criminalpossession of stolen property in the fourth degree (Penal Law § 165.45 [2]),defendant contends that the evidence is legally insufficient to support the conviction because thePeople failed to prove that he constructively possessed the stolen property, i.e., a debit card thatwas found by the police on a dresser in his bedroom. We reject that contention. Although therewas no evidence that defendant was in direct possession of the debit card, the People establisheddefendant's constructive possession by showing that he exercised "a sufficient level of controlover the area" in which the card was found (People v Manini, 79 NY2d 561, 573 [1992];see People v Forsythe, 115 AD3d1361, 1363 [2014]). Granted, other people lived in the house with defendant and had accessto his bedroom, but "exclusive access is not required" for a finding of constructive possession (People v Nichol, 121 AD3d 1174,1177 [2014], lv denied 25 NY3d 1205 [2015]; see People v Farmer, 136 AD3d 1410, 1412 [2016], lv denied28 NY3d 1027 [2016]). Viewing the evidence in the light most favorable to the People(see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that it is legally sufficientto support the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Because the evidence is legally sufficient to establish defendant's guilt, we reject defendant'srelated contention that County Court erred in denying his motion to set aside the verdict pursuantto CPL 330.30 (1).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we further conclude that the verdict is not against the weight of theevidence (see generally Bleakley, 69 NY2d at 495). Pointing to evidence that anotherperson who lived in his house may have possessed a cell phone that had been stolen from thesame victim, defendant suggests that such other person could easily have placed the debit card ondefendant's dresser when the police arrived at the house to execute a search warrant. If that werethe case, however, one would think that defendant's housemate also would have planted thestolen cell phone in his bedroom, but that did not occur. In any event, that argument was made bydefense counsel to the jury and, although a different verdict would not have been unreasonable,"it cannot be said that the jury failed to give the evidence the weight it should be accorded" (People v Canfield, 111 AD3d1396, 1397 [2013], lv denied 22 NY3d 1087 [2014]; see generally Bleakley,69 NY2d at 495).
Finally, we reject defendant's contention that he was deprived of effective assistance ofcounsel at trial because his attorney stipulated that the bedroom in which the debit card wasfound belonged to him. We note that defendant does not assert that the bedroom was not his orthat, absent the stipulation, the People would have had difficulty proving that fact. Indeed,despite the stipulation, evidence was adduced at trial showing that numerous papers withdefendant's name on them were found in the bedroom, and defendant stated at sentencing that hehad no idea that the debit card was in his room. Under the circumstances, defense counsel'sdecision to stipulate that the debit card was found in defendant's bedroom "could be seen as partof a valid strategy to avoid dwelling on facts that would almost certainly be established andinstead maintain his focus on the hotly contested element[ ] of possession" (People v Knox, 80 AD3d 887, 889[2011], lv denied 16 NY3d 860 [2011]). Present—Peradotto, J.P., Carni, Lindley,Troutman and Scudder, JJ.