People v. Butler, 105216

• Decision Date: 12 March 2015
• Docket Number: 105216
• Citation: 126 A.D.3d 1122,2015 N.Y. Slip Op. 02017,4 N.Y.S.3d 751
• Parties: The PEOPLE of the State of New York, Respondent, v. Parrish BUTLER, Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1122
4 N.Y.S.3d 751
2015 N.Y. Slip Op. 02017

The PEOPLE of the State of New York, Respondent
v.
Parrish BUTLER, Appellant.

105216

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

March 12, 2015.

4 N.Y.S.3d 751

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.

Before: LAHTINEN, J.P., GARRY, ROSE and DEVINE, JJ.

Opinion

4 N.Y.S.3d 752

DEVINE, J.

126 A.D.3d 1122

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered May 30, 2012, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree.

While attempting to flee from pursuing police officers, defendant allegedly discarded a loaded handgun. He was thereafter arrested and charged with criminal possession of a weapon in the second degree. Following a jury trial, defendant was found guilty as charged and was subsequently sentenced to 5 ½ years in prison followed by five years of postrelease supervision. Defendant now appeals.

We first address defendant's claim that his conviction was against the weight of the evidence.¹ In particular, defendant limits his argument to the claim that the People failed to prove beyond a reasonable doubt that he constructively possessed the handgun that was secured prior to his arrest. We disagree.

126 A.D.3d 1123

Constructive possession can be demonstrated where there is evidence—either direct or circumstantial—that defendant exercised “dominion and control over the weapon or the area in which it was found” (People v. Bellamy, 118 A.D.3d 1113, 1114, 987 N.Y.S.2d 666 [2014] ; see People v. Perry, 116 A.D.3d 1253, 1254, 983 N.Y.S.2d 699 [2014] ; People v. Dawson, 110 A.D.3d 1350, 1352, 973 N.Y.S.2d 850 [2013], lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014] ; People v. Stewart, 95 A.D.3d 1363, 1364, 943 N.Y.S.2d 302 [2012], lv. denied 19 N.Y.3d 1001, 951 N.Y.S.2d 477, 975 N.E.2d 923 [2012] ; People v. Pinkney, 90 A.D.3d 1313, 1314, 935 N.Y.S.2d 374 [2011] ). The People presented testimonial evidence of several police officers, including Gregory McGee, who averred that, after hearing a gun shot during his overnight shift, his investigation led him to observe defendant turning a street corner on a bicycle. When defendant saw McGee's marked police car, he became visibly nervous and immediately clutched the right side of his waistband. Believing that defendant was armed, McGee exited his vehicle, drew his firearm and ordered defendant to show his hands. Defendant refused to comply with the directive and a physical encounter ensued. As McGee holstered his handgun and attempted to grab his taser, defendant fled on his bicycle. McGee then radioed for assistance while pursuing defendant on foot and a responding police officer, Jason Seward, pulled his patrol car onto the sidewalk in order to block defendant. McGee testified that, as defendant ran around the patrol car, he observed defendant's hand emerge from under his sweatshirt and throw something, which created a sound of “metal hitting the ground.” As Seward continued to pursue defendant, McGee found a handgun on the sidewalk a few feet from Seward's patrol car. Shortly thereafter, defendant was apprehended and the handgun was later confirmed to contain three rounds of “live” ammunition and one spent shell casing, indicating...