People v. Hunt

• Decision Date: 24 July 2020
• Docket Number: 687,KA 18–01628
• Citation: 127 N.Y.S.3d 674,185 A.D.3d 1531
• Parties: The PEOPLE of the State of New York, Respondent, v. Gerald HUNT, also known as Cheron Hunt, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1531
127 N.Y.S.3d 674

The PEOPLE of the State of New York, Respondent,
v.
Gerald HUNT, also known as Cheron Hunt, Defendant-Appellant.

687
KA 18–01628

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

Entered: July 24, 2020

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

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 proceedings pursuant to CPL 470.45.

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] ). The conviction arises from the discovery at a border checkpoint of a loaded handgun in a duffle bag located inside the locked truck of a vehicle in which defendant was the backseat passenger.

Initially, by failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve his challenge to the legal sufficiency of the evidence (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ;

127 N.Y.S.3d 676

People v. Brooks , 139 A.D.3d 1391, 1392–1393, 31 N.Y.S.3d 372 [4th Dept. 2016], lv denied 28 N.Y.3d 1026, 45 N.Y.S.3d 378, 68 N.E.3d 107 [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 the evidence’ " ( People v. Stepney , 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ; see People v. Danielson , 9 N.Y.3d 342, 349–350, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). As charged to the jury here, a person is guilty of criminal possession of a weapon in the second degree when that person knowingly possesses any loaded firearm and such possession did not take place in such person's home or place of business (see Penal Law § 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 constructive possession" ( People v. McCoy , 169 A.D.3d 1260, 1262, 95 N.Y.S.3d 441 [3d Dept. 2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019] ; see § 10.00[8] ). To establish constructive possession, "the People must show that [such person] exercised ‘dominion or control’ over the [firearm] by a sufficient level of control over the area in which the [firearm] is found or over the person from whom the [firearm] is seized" ( People v. Manini , 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ; see CJI2d[NY] Physical and Constructive Possession). We note that the People did not present a case based on the automobile presumption set forth in Penal Law § 265.15(3) and, thus, the jury was not provided with that charge (see People v. Worthington , 150 A.D.3d 1399, 1401–1402, 55 N.Y.S.3d 743 [3d Dept. 2017], lv denied 29 N.Y.3d 1095, 63...