People v. Ward

• Decision Date: 22 March 2013
• Citation: People v. Ward, 104 A.D.3d 1323, 960 N.Y.S.2d 839, 2013 N.Y. Slip Op. 1976 (N.Y. App. Div. 2013)
• Parties: The PEOPLE of the State of New York, Respondent, v. Tillman WARD, Defendant–Appellant.
• 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.

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:

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 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 presumption of possession set forth in Penal Law § 265.15(3) provides that “[t]he presence in an automobile, other than a stolen one or a public omnibus, of any firearm ... [or] defaced firearm ... is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon ... is found.” Furthermore, defendant admitted to the police that he had possessed the weapon and had placed it under the driver's seat. That admission was confirmed by “DNA samples taken from the handgun [that] were consistent with defendant's DNA, from which an inference could be made that defendant had physically possessed the gun at some point in time” ( People v. Robinson, 72 A.D.3d 1277, 1278, 898 N.Y.S.2d 365,lv. denied15 N.Y.3d 809, 908 N.Y.S.2d 169, 934 N.E.2d 903;see People v. Long, 100 A.D.3d 1343, 1344, 953 N.Y.S.2d 744). We thus conclude that the evidence is legally sufficient to establish the element of possession ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Contrary to defendant's further contention, viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Even assuming, arguendo, that a different finding would not have been unreasonable, we conclude that the jury did not fail to give the evidence the weight it should be accorded ( see id.).

We reject defendant's further contention that the court erred in denying his request to instruct the jury on the defense of temporary innocent possession of the handgun inasmuch as “there was no reasonable view of the evidence upon which the jury could have found that the defendant's possession was innocent” ( ...