People v. Everson

• Decision Date: 01 February 2019
• Docket Number: 1401,KA 16–01429
• Citation: 92 N.Y.S.3d 813,169 A.D.3d 1441
• Parties: The PEOPLE of the State of New York, Respondent, v. George EVERSON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 1441
92 N.Y.S.3d 813

The PEOPLE of the State of New York, Respondent,
v.
George EVERSON, Defendant–Appellant.

1401
KA 16–01429

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

Entered: February 1, 2019

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NATHANIEL V. RILEY OF COUNSEL), FOR DEFENDANT–APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

169 A.D.3d 1441

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

169 A.D.3d 1442

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] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ). Defendant's conviction arises out of the seizure from his apartment of, inter alia, a loaded .38 caliber handgun and 103 bags of heroin during the execution of a search warrant. Defendant shared the apartment with his two young children and their mother.

Defendant contends that his conviction is not supported by legally sufficient evidence inasmuch as the People failed to establish that he had constructive possession of either the gun or the drugs. That contention is preserved for our review, however, only with respect to the criminal possession of a weapon count inasmuch as defendant did not argue in his motion for a trial order of dismissal that there was legally insufficient evidence to establish the element of possession under the criminal possession of a controlled substance count (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ).

In reviewing the legal sufficiency of the evidence, we must "determine whether any valid line of reasoning 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 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367 [1994] ; see People v. Boyd, 145 A.D.3d 1481, 1482, 43 N.Y.S.3d 641 [4th Dept. 2016], lv denied

92 N.Y.S.3d 815

29 N.Y.3d 947, 54 N.Y.S.3d 377, 76 N.E.3d 1080 [2017] ). "To meet their burden of proving defendant's constructive possession 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 A.D.3d 1079, 1082, 34 N.Y.S.3d 827 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [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 or control over the area in which...