| People v Hunt |
| 2020 NY Slip Op 04270 [185 AD3d 1531] |
| July 24, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Gerald Hunt, Also Known as Cheron Hunt,Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent.
Appeal from a judgment of the Erie County Court (James A.W. McLeod, A.J.), renderedApril 26, 2018. The judgment convicted defendant upon a jury verdict of criminal possession of aweapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the facts,the indictment is dismissed, and the matter is remitted to Erie County Court for proceedingspursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]).The conviction arises from the discovery at a border checkpoint of a loaded handgun in a dufflebag located inside the locked truck of a vehicle in which defendant was the backseatpassenger.
Initially, by failing to renew his motion for a trial order of dismissal after presentingevidence, defendant failed to preserve his challenge to the legal sufficiency of the evidence(see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001];People v Brooks, 139 AD3d1391, 1392-1393 [4th Dept 2016], lv denied 28 NY3d 1026 [2016]). Nonetheless," 'we necessarily review the evidence adduced as to each of the elements of the crime[ ]in the context of our review of defendant's challenge regarding the weight of theevidence' " (People vStepney, 93 AD3d 1297, 1298 [4th Dept 2012], lv denied 19 NY3d 968 [2012];see People v Danielson, 9 NY3d342, 349-350 [2007]). As charged to the jury here, a person is guilty of criminal possessionof a weapon in the second degree when that person knowingly possesses any loaded firearm andsuch possession did not take place in such person's home or place of business (see PenalLaw § 265.03 [3]; CJI2d[NY] Penal Law § 265.03 [3]). Such person"may be found to possess a firearm through actual, physical possession or through constructivepossession" (People v McCoy, 169AD3d 1260, 1262 [3d Dept 2019], lv denied 33 NY3d 1033 [2019]; see§ 10.00 [8]). To establish constructive possession, "the People must show that [suchperson] exercised 'dominion or control' over the [firearm] by a sufficient level of control over thearea in which the [firearm] is found or over the person from whom the [firearm] is seized"(People v Manini, 79 NY2d 561, 573 [1992]; see CJI2d[NY] Physical andConstructive Possession). We note that the People did not present a case based on the automobilepresumption set forth in Penal Law § 265.15 (3) and, thus, the jury was notprovided with that charge (see People vWorthington, 150 AD3d 1399, 1401-1402 [3d Dept 2017], lv denied 29 NY3d1095 [2017]).
Here, upon our independent review of the evidence in light of the elements of the crime ascharged to the jury (see Danielson, 9 NY3d at 349), we agree with defendant that theverdict is against the weight of the evidence inasmuch as the jury was not justified in findingbeyond a reasonable doubt that defendant possessed the handgun in question (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). It is undisputed that the driver owned thevehicle and that the duffle bag belonged to him as well. The People relied on evidence thatdefendant's DNA profile matched that of the major contributor to DNA found on the handgunand that the driver was excluded as a contributor thereto. Although " 'an inference couldbe made [from that evidence] that defendant had physically possessed the gun at some point intime' " (People v Ward, 104AD3d 1323, 1324 [4th Dept 2013], lv denied 21 NY3d 1011 [2013]), that evidencealone does not establish that defendant actually possessed the handgun on the date and at the timealleged in the indictment (see People vGraham, 107 AD3d 1296, 1298 [3d Dept 2013]; cf. People v Habeeb, 177 AD3d 1271, 1274 [4th Dept 2019], lvdenied 34 NY3d 1159 [2020]).
Further, given the absence of other evidence, the People failed to establish that defendant"exercised dominion or control over the [handgun] by a sufficient level of control over the area inwhich [it was] found" (People vBurns, 17 AD3d 709, 710 [3d Dept 2005] [internal quotation marks omitted]; see People v Diallo, 137 AD3d1681, 1682 [4th Dept 2016]; cf. Ward, 104 AD3d at 1324). In this case, defendant'smere presence in the vehicle where the handgun was found did not establish that heconstructively possessed it (see Burns, 17 AD3d at 710; see also People v Rolldan, 175 AD3d1811, 1813 [4th Dept 2019], lv denied 34 NY3d 1081 [2019]). Defendant was notthe owner or operator of the vehicle, nor did the duffle bag in the locked trunk belong to him, andthere was no evidence that defendant possessed or had access to the keys for the vehicle or thathe had any access to or control over the trunk and duffle bag (see Burns, 17 AD3d at 711;cf. Ward, 104 AD3d at 1324;People v Leader, 27 AD3d 901, 904 [3d Dept 2006]). Contrary to the People'scontention, defendant's statement to the police did not constitute an admission that he hadpossessed the handgun (cf. Ward, 104 AD3d at 1324) or that he knew about its presencein the duffle bag and, in any event, mere knowledge of the presence of the handgun would notestablish constructive possession (seePeople v Mattison, 41 AD3d 1224, 1225 [4th Dept 2007], lv denied 9 NY3d 924[2007]; Burns, 17 AD3d at 711; see generally People v Rivera, 82 NY2d 695, 697[1993]). We therefore reverse the judgment of conviction and dismiss the indictment.
In light of our determination, we need not consider defendant's remaining contention.Present—Centra, J.P., Peradotto, NeMoyer, Winslow and DeJoseph,JJ.