People v. Alexander

• Decision Date: 26 August 2021
• Docket Number: 651,KA 16-00654
• Citation: 197 A.D.3d 1013,152 N.Y.S.3d 540
• Parties: The PEOPLE of the State of New York, Respondent, v. Willie ALEXANDER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 1013
152 N.Y.S.3d 540

The PEOPLE of the State of New York, Respondent,
v.
Willie ALEXANDER, Defendant-Appellant.

651
KA 16-00654

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: August 26, 2021

LELAND D. MCCORMAC, III, INTERIM PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIE ALEXANDER, DEFENDANT-APPELLANT PRO SE.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, NEMOYER, AND WINSLOW, JJ.

197 A.D.3d 1013

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

197 A.D.3d 1014

Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), criminal possession of a weapon in the third degree (§ 265.02 [1]), and petit larceny (§ 155.25). We affirm.

At trial, a WalMart security guard testified that he saw defendant take a handgun out of his pants and toss it into a snowbank outside the store. At the time of his observation, the guard was pursuing defendant for shoplifting at a distance of

152 N.Y.S.3d 542

approximately eight feet. Defendant's tossing gesture was also observed by another WalMart employee who witnessed the pursuit from a greater distance. The guard immediately secured defendant after the gun was discarded; minutes later, the police recovered the gun in the exact location where defendant had just thrown it and where a passerby had been continuously safeguarding it in the interim. Moreover, a federal agent testified that the subject gun had been purchased by a straw buyer in Columbia, South Carolina, and defendant's state identification card was issued by South Carolina and bore a Columbia address.

Viewing the trial evidence independently and in light of the elements as charged to the jury (see People v. Dexter , 191 A.D.3d 1246, 1246-1247, 137 N.Y.S.3d 769 [4th Dept. 2021], lv denied 36 N.Y.3d 1119, 146 N.Y.S.3d 215, 169 N.E.3d 573 [2021] ; see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject the contention in defendant's main brief that the verdict convicting him of criminal possession of a weapon in the second and third degrees is against the weight of the evidence with respect to the element of possession (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Indeed, given the security guard's detailed eyewitness testimony, the provenance of the gun, and the virtually instantaneous recovery of the gun in the exact location where defendant had just discarded it, the evidence of actual possession is so overwhelming that an acquittal on that ground would have been unreasonable (see People v. Simmons , 133 A.D.3d 1275, 1277, 20 N.Y.S.3d 787 [4th Dept. 2015], lv denied 27 N.Y.3d 1006, 38 N.Y.S.3d 115, 59 N.E.3d 1227 [2016] ; People v. Wimberly , 86 A.D.3d 806, 808, 927 N.Y.S.2d 229 [3d Dept. 2011], lv denied 18 N.Y.3d 863, 938 N.Y.S.2d 870, 962 N.E.2d 295 [2011] ). Under these circumstances, the absence of fingerprint or DNA evidence does not raise a reasonable doubt concerning defendant's actual possession of the gun (see People v. Randolph , 180 A.D.3d 716, 717, 118 N.Y.S.3d 733 [2d Dept. 2020], lv denied 35 N.Y.3d 1048, 127 N.Y.S.3d 831, 151 N.E.3d 512 [2020] ; People v. Butler , 126 A.D.3d 1122, 1123, 4 N.Y.S.3d 751 [3d Dept. 2015], lv denied 25 N.Y.3d 1199, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015] ). Nor is the security guard's credibility undermined by his purported failure to include, in his written report, an inconsequential collateral detail about the incident (see

197 A.D.3d 1015

People v. Jefferson , 207 A.D.2d 753, 754, 616 N.Y.S.2d 730 [1st Dept. 1994], lv denied 84 N.Y.2d 1012, 622 N.Y.S.2d 923, 647 N.E.2d 129 [1994] ).

We note, however, the following three statements in the People's responding brief: "deference should be afforded the factual findings of the jury" in conducting our weight of the evidence review; a conviction should not be overturned on weight of the evidence review " ‘unless clearly unsupported by the record’ "; and a conviction should be overturned on weight of the evidence review only when it "rests upon testimony that is ‘physically impossible, contrary to experience, or self-contradictory.’ " All three propositions are incorrect characterizations of the Appellate Division's power to review the weight of the evidence...