| People v Rolldan |
| 2019 NY Slip Op 06913 [175 AD3d 1811] |
| September 27, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Inalia Rolldan, Also Known as Sky,Appellant. |
Lindsey M. Pieper, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Lisa Gray of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedDecember 21, 2016. The judgment convicted defendant, upon a jury verdict, of kidnapping in thesecond degree (two counts), criminal use of a firearm in the first degree, criminal possession of aweapon in the third degree, and criminal possession of a weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing those parts convicting defendant of criminal use of a firearm in the first degree,criminal possession of a weapon in the third degree, and criminal possession of a weapon in thefourth degree and dismissing counts 28, 30, and 32 of the indictment against her and as modifiedthe judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of twocounts of kidnapping in the second degree (Penal Law § 135.20), and one counteach of criminal use of a firearm in the first degree (§ 265.09 [1] [a]), criminalpossession of a weapon in the third degree (§ 265.02 [3]), and criminal possessionof a weapon in the fourth degree (§ 265.01 [2]). Defendant's contention thatSupreme Court should have severed her trial from that of her codefendants is not preserved forour review because her pretrial motion for severance was based on different grounds than thegrounds she now raises on appeal (see People v Howie, 149 AD3d 1497, 1499 [4th Dept2017], lv denied 29 NY3d 1128 [2017]; People v Wooden, 296 AD2d 865, 866[4th Dept 2002], lv denied 99 NY2d 541 [2002]). We decline to exercise our power toreview her contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).
Contrary to defendant's further contention, the evidence is legally sufficient to support herconviction of kidnapping in the second degree. Viewing the evidence in the light most favorableto the People (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there isa valid line of reasoning and permissible inferences to support the conclusion that defendant had"a shared intent, or 'community of purpose' with the principal[s]" (People v Carpenter,138 AD3d 1130, 1131 [2d Dept 2016], lv denied 28 NY3d 928 [2016], quotingPeople v Cabey, 85 NY2d 417, 421 [1995]). Defendant was present in a house when thepolice raided it and rescued two victims who were being held captive there, and the identificationof one of the victims was found in a backpack that defendant was wearing when the policeentered the house. It could be readily inferred from the evidence that defendant was aware thatthe victims were being held there and that she intentionally aided the principals by providingthem and the victims with food (see generally Penal Law § 20.00). Inaddition, viewing the evidence in light of the elements of kidnapping in the second degree ascharged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude thatthe verdict is not against the weight of the evidence (see generally People v Bleakley, 69NY2d 490, 495 [1987]).
We agree with defendant, however, that the evidence is legally insufficient to support herconviction of the counts of criminal use of a firearm in the first degree, criminal possession of aweapon in the third degree, and criminal possession of a weapon in the fourth degree, and wetherefore modify the judgment accordingly. Those counts were based on her possession of a riflethat was found in the house after the police entered. To establish constructive possession of theweapon, the People had to establish that defendant "exercised dominion or control over [theweapon] by a sufficient level of control over the area in which [it was] found" (People v Everson, 169 AD3d1441, 1442 [4th Dept 2019], lv denied 33 NY3d 1068 [2019] [internal quotationmarks omitted]; see People v Manini, 79 NY2d 561, 573 [1992]; People v Jones,149 AD3d 1580, 1580 [4th Dept 2017], lv denied 29 NY3d 1129 [2017]). Here, theevidence established that, prior to the arrival of the police, defendant was sitting in the livingroom of the house, the rifle was on a table in the living room, and one of the other perpetrators inthe kidnapping put on a mask, grabbed the rifle, went to the room where the victims were beingheld, then came back to the living room and put the rifle back on the table. Contrary to thePeople's contention, that evidence is insufficient to establish that defendant had constructivepossession of the weapon. A defendant's mere presence in the house where the weapon is foundis insufficient to establish constructive possession (see Everson, 169 AD3d at1442-1443), and there was no evidence establishing that defendant exercised dominion or controlover the weapon (see People v Carmichael, 68 AD3d 1704, 1704-1705 [4th Dept 2009],lv denied 14 NY3d 798 [2010]; cf. Everson, 169 AD3d at 1442-1443;Jones, 149 AD3d at 1580-1581). Present—Centra, J.P., Peradotto, Carni,Troutman and Winslow, JJ.