People v. Ward

• Citation: 2013 N.Y. Slip Op. 01976,960 N.Y.S.2d 839,104 A.D.3d 1323
• Parties: The PEOPLE of the State of New York, Respondent, v. Tillman WARD, Defendant–Appellant.
• Decision Date: 22 March 2013
• Court: New York Supreme Court Appellate Division

104 A.D.3d 1323
960 N.Y.S.2d 839
2013 N.Y. Slip Op. 01976

The PEOPLE of the State of New York, Respondent,
v.
Tillman WARD, Defendant–Appellant.

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

March 22, 2013.

[960 N.Y.S.2d 840]

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.

MEMORANDUM:

[104 A.D.3d 1323]On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that Supreme Court abused its discretion in consolidating two indictments for trial ( see People v. Rios, 72 A.D.3d 1489, 1490–1491, 899 N.Y.S.2d 769,lv. denied15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059). We reject that contention. Although the indictments are based upon different criminal transactions, the offenses charged are “the same or similar in law” (CPL 200.20[2][c] ), and defendant failed to establish that there was “[s]ubstantially more proof on one or more [of the] joinable offenses than on others and [that] there [was] a substantial likelihood that the jury would be unable to consider separately the proof as it relat[ed] to each offense” (CPL 200.20[3][a]; see generally People v. Lane, 56 N.Y.2d 1, 7–8, 451 N.Y.S.2d 6, 436 N.E.2d 456). Indeed, the fact that the jury convicted defendant on the charge from one incident but was unable to reach a verdict with respect to the charge from the other incident “reflects that the jury was able to consider each count as a separate and [104 A.D.3d 1324]distinct incident” ( People v. Reed, 212 A.D.2d 962, 962, 624 N.Y.S.2d 693,lv. denied86 N.Y.2d 739, 631 N.Y.S.2d 620, 655 N.E.2d 717).

We also reject defendant's contention that the evidence is legally insufficient with respect to the element of possession. “Defendant's possession of the weapon may be established through the doctrine of constructive possession, which is based on the exercise of dominion and control over the area in which an item is found” ( People v. Carter, 60 A.D.3d 1103, 1106, 875 N.Y.S.2d 303,lv. denied12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086). Here, the police recovered the loaded handgun from the floor under the driver's seat of a vehicle, and defendant admitted to the police that he drove the automobile to the location where it was searched. The statutory...