| People v Boyd |
| 2017 NY Slip Op 06769 [153 AD3d 1608] |
| September 29, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Tyreik A.Boyd, Appellant. |
Bridget L. Field, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.), renderedNovember 18, 2011. The judgment convicted defendant, upon a jury verdict, of attemptedcriminal possession of a weapon in the second degree and attempted criminal possession of aweapon in the third 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 attemptedcriminal possession of a weapon in the second degree (Penal Law §§ 110.00,265.03 [3]) and attempted criminal possession of a weapon in the third degree(§§ 110.00, 265.02 [3]), defendant contends that the evidence is legallyinsufficient to support the conviction. We reject that contention. The evidence established thatdefendant was the front seat passenger in a vehicle that was stopped by the police. He appearedanxious and nervous when he first observed the officers, and he acted in a suspicious mannerwhen asked for the vehicle's registration. Instead of looking at the documents he pulled from theglove box, defendant let them fall to the ground and began moving them with his feet. Whenasked to identify himself, defendant refused to provide anything other than his first name. Giventhe suspicious nature of defendant's behavior, the officers asked him to exit the vehicle. As soonas the passenger door opened, the officers observed the handle of the firearm "sticking out fromunderneath the seat" between the seat and the door. Defendant thereafter "tried to pull away"when he was handcuffed by the police officers.
Contrary to defendant's contention, the evidence is legally sufficient to establish thatdefendant constructively possessed the firearm, i.e., that he exercised " 'dominion andcontrol over the area in which [the firearm was] found' " (People v Ward, 104 AD3d 1323,1324 [2013], lv denied 21 NY3d 1011 [2013]). Based on the location and position of thefirearm, which was visible as it protruded from under the right side of the passenger seat (seePeople v Lynch, 116 AD2d 56, 61 [1986], citing People v Lemmons, 40 NY2d 505,509-510 [1976]), and the fact that defendant was seated in that passenger seat, we conclude that"the jury was . . . entitled to accept or reject the permissible inference that defendantpossessed the weapon" (People vCarter, 60 AD3d 1103, 1106 [2009], lv denied 12 NY3d 924 [2009]). The factthat a defense witness testified that the firearm belonged to him "presented an issue of credibilityfor the jury to resolve" (id. at 1107).
Contrary to defendant's further contention, although there is no dispute that the firearm atissue was not operable, it is well settled that a defendant may be convicted of attempted criminalpossession of a weapon when he or she believes that the firearm is operable (see Matter ofLavar D., 90 NY2d 963, 965 [1997]; People v Saunders, 85 NY2d 339, 342 [1995];Matter of David H., 255 AD2d 264, 264 [1998]). Here, the evidence establishing that thefirearm was loaded, that defendant appeared to be nervous and anxious when he was seen andstopped by the police and that defendant attempted to flee is sufficient "to support the inferencethat [defendant] believed and intended the firearm to be operable" (Lavar D., 90 NY2d at963).
Defendant also contends that his conviction of attempted criminal possession of a weapon inthe third degree is not supported by legally sufficient evidence because there is no evidence thatthe firearm was "defaced for the purpose of the concealment or prevention of the detection of acrime or misrepresenting the identity of such . . . firearm" (Penal Law§ 265.02 [3]). That contention is not preserved for our review inasmuch asdefendant's motion for a trial order of dismissal was not " 'specifically directed' at [that]alleged" deficiency in the proof (People v Gray, 86 NY2d 10, 19 [1995]). In any event,defendant's contention lacks merit. The evidence at trial established that the firearm was defacedintentionally, and that the destruction of the serial number was "open and obvious" (People vRidore, 273 AD2d 154, 154 [2000], lv denied 95 NY2d 907 [2000]). Viewing theevidence in the light most favorable to the People (see People v Contes, 60 NY2d 620,621 [1983]), we conclude that there is a "valid line of reasoning and permissible inferenceswhich could lead a rational person to the conclusion" that the firearm was defaced for illicitpurposes (People v Bleakley, 69 NY2d 490, 495 [1987]).
Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we reject defendant's further contention that the verdict is contrary to theweight of the evidence (see generally Bleakley, 69 NY2d at 495). Although an acquittalwould not have been unreasonable, it cannot be said that the jury failed to give the evidence theweight it should be accorded (see generally Danielson, 9 NY3d at 348; Bleakley,69 NY2d at 495).
We have reviewed defendant's remaining contention and conclude that it does not warrantreversal or modification of the judgment. Present—Whalen, P.J., Peradotto, Lindley,NeMoyer and Curran, JJ.