| People v Everson |
| 2019 NY Slip Op 00788 [169 AD3d 1441] |
| February 1, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v George Everson, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Nathaniel V. Riley of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Bradley W. Oastler of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered February5, 2016. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon inthe second degree and criminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]) and criminalpossession of a controlled substance in the third degree (§ 220.16 [1]). Defendant'sconviction arises out of the seizure from his apartment of, inter alia, a loaded .38 caliber handgun and103 bags of heroin during the execution of a search warrant. Defendant shared the apartment with histwo young children and their mother.
Defendant contends that his conviction is not supported by legally sufficient evidence inasmuch asthe People failed to establish that he had constructive possession of either the gun or the drugs. Thatcontention is preserved for our review, however, only with respect to the criminal possession of aweapon count inasmuch as defendant did not argue in his motion for a trial order of dismissal that therewas legally insufficient evidence to establish the element of possession under the criminal possession ofa controlled substance count (see People v Gray, 86 NY2d 10, 19 [1995]).
In reviewing the legal sufficiency of the evidence, we must "determine whether any valid line ofreasoning and permissible inferences could lead a rational person to the conclusion reached by the[factfinder] on the basis of the evidence at trial, viewed in the light most favorable to the People"(People v Williams, 84 NY2d 925, 926 [1994]; see People v Boyd, 145 AD3d 1481, 1482 [4th Dept 2016], lvdenied 29 NY3d 947 [2017]). "To meet their burden of proving defendant's constructivepossession of the [gun], the People had to establish that defendant exercised dominion or control over[the gun] by a sufficient level of control over the area in which [it was] found" (People v Lawrence, 141 AD3d 1079,1082 [4th Dept 2016], lv denied 28 NY3d 1029 [2016] [internal quotation marks omitted];see Penal Law § 10.00 [8]).
Contrary to defendant's contention, there is legally sufficient evidence that he exercised dominion orcontrol over the area in which the gun was found and thus constructively possessed it, notwithstandingthat the area was accessible to other people (see People v Tuff, 156 AD3d 1372, 1375 [4th Dept 2017], lvdenied 31 NY3d 1018 [2018]). Exclusive access is not required to sustain a finding of constructivepossession (see id.), and "several individuals may constructively possess an objectsimultaneously, provided each individual exercises dominion and control over the object or the area inwhich the object is located" (Boyd, 145 AD3d at 1482 [internal quotation marks omitted]).Here, the gun was found wrapped in baby clothing, having fallen from a playpen inside the apartmentwhere defendant resided with his toddlers. Thus, the evidence "went beyond defendant's mere presencein the residence at the time of the search and established 'a particular set of circumstances from which ajury could infer possession' of the contraband" (People v McGough, 122 AD3d 1164, 1166 [3d Dept 2014], lvdenied 24 NY3d 1220 [2015], quoting People v Bundy, 90 NY2d 918, 920 [1997]).Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342,349 [2007]), we conclude that the verdict with respect to both crimes is not against the weight of theevidence (see generally CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 495[1987]; People v Stephenson, 104 AD3d1277, 1278 [4th Dept 2013], lv denied 21 NY3d 1020 [2013], deniedreconsideration 23 NY3d 1025 [2014]).
Contrary to defendant's contention, his sentence is not unduly harsh or severe. Finally, we haveconsidered defendant's remaining contentions and conclude that none warrants modification or reversalof the judgment. Present—Whalen, P.J., Smith, DeJoseph, Curran and Winslow, JJ.