People v. Graham

• Decision Date: 27 June 2013
• Citation: 2013 N.Y. Slip Op. 04846,107 A.D.3d 1296,967 N.Y.S.2d 531
• Parties: The PEOPLE of the State of New York, Respondent, v. Mustafa GRAHAM, Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1296
967 N.Y.S.2d 531
2013 N.Y. Slip Op. 04846

The PEOPLE of the State of New York, Respondent,
v.
Mustafa GRAHAM, Appellant.

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

June 27, 2013.

[967 N.Y.S.2d 532]

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

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: ROSE, J.P., SPAIN, McCARTHY and EGAN JR., JJ.

McCARTHY, J.

[107 A.D.3d 1296]Appeal from a judgment of the Supreme Court (Lamont, J.), rendered March 24, 2011 in Albany County, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree.

[107 A.D.3d 1297]A jury found defendant guilty of criminal possession of a weapon in the second degree. Supreme Court sentenced him to a prison term of 11 years followed by five years of postrelease supervision. Defendant appeals.

Although defendant's conviction is supported by legally sufficient evidence, the conviction is against the weight of the evidence. As is relevant here, “[a] person is guilty of criminal possession of a weapon in the second degree when ... such person possesses any loaded firearm” outside of such person's home or place of business (Penal Law § 265.03[3] ). Here, evidence presented at trial established that a police officer was on patrol in a marked police vehicle in the City of Albany when he drove past defendant and another individual, Kadeem Fox, who were riding bicycles in the opposite direction of the police vehicle. The officer, who was familiar with both individuals, noticed through his rearview mirror that defendant looked over his shoulder at the police vehicle numerous times, which prompted the officer to turn around. As he turned onto Sheridan Avenue, the officer observed Fox on the stairs at 269 Sheridan Avenue and defendant standing about 20 to 30 feet past that house. Upon seeing the officer, Fox ran down the stairs and then defendant and Fox took off on the bicycles. The officer subsequently searched the area and discovered a loaded handgun sitting in front of 269 Sheridan Avenue. When asked about defendant's location relative to where the officer found the revolver, the officer testified that defendant “was in that general area.”

Laboratory tests verified that the handgun was operable. DNA swabs taken from the trigger and backstrap of the handgun indicated that the DNA was admixed with at least two individual DNA...