People v. Perry

• Decision Date: 17 April 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Daquan K. PERRY, Appellant.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1253
983 N.Y.S.2d 699
2014 N.Y. Slip Op. 02635

The PEOPLE of the State of New York, Respondent,
v.
Daquan K. PERRY, Appellant.

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

April 17, 2014.

Frank A. Sarat, Homer, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, ROSE and EGAN JR., JJ.

PETERS, P.J.

Appeal from a judgment of the County Court of Chemung County (Buckley, J.), rendered July 11, 2011, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.

[983 N.Y.S.2d 700]

In January 2011, two masked males forcibly entered a private residence, stole money and property from one of the occupants at gunpoint and ejected a round of ammunition into the floor before fleeing. The victim initially followed the assailants and observed them heading across the street towards an apartment complex, but retreated after shots were fired at him. The victim then reported the incident to police and provided the street name “Casanova” as possibly being one of the gunmen. Officers thereafter responded to an apartment within the nearby complex towards which the assailants fled, where defendant and another suspect were detained. Upon searching the apartment, police discovered the clothes that the assailants were reportedly wearing during the robbery, an item of jewelry that had been stolen and a 9 millimeter pistol loaded with ammunition that was determined to be identical to the round that had been ejected during the robbery. Defendant was thereafter charged in a 10–count indictment with crimes stemming from his alleged involvement in the home invasion and possession of the firearm that was seized. Following a jury trial, he was convicted of one count each of criminal possession of a weapon in the second degree and third degree. Sentenced as a second violent felony offender to an aggregate prison term of seven years with five years of postrelease supervision, defendant now appeals.

Defendant's sole contention on this appeal is that the verdict was against the weight of the evidence because the proof failed to support a finding that he constructively possessed the weapon seized. A person having previously been convicted of a crime is guilty of criminal possession of a weapon in the third degree when he or she possesses an operable firearm ( seePenal Law §§ 265.01[1]; 265.02[1] ), and of criminal possession of a weapon in the second degree when such firearm is loaded ( seePenal Law § 265.03 [3] ).¹ “Where, as here, the People proceed upon the theory of constructive possession, they bear the burden of establishing that defendant exercised dominion and control over the contraband or the area where the contraband was found” ( People v. Dawson, 110 A.D.3d 1350, 1352, 973 N.Y.S.2d 850 [2013] [internal quotation marks, brackets and citations omitted]; seePenal Law § 10.00[8]; People v. Manini, 79 N.Y.2d 561, 572–573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ). Such constructive possession may be established through either direct or circumstantial evidence ( see People v. Brian, 84 N.Y.2d 887, 889, 620 N.Y.S.2d 789, 644 N.E.2d 1345 [1994];People v. Pinkney, 90 A.D.3d 1313, 1314, 935 N.Y.S.2d 374 [2011] ), and may be found even though others...