People v. Wilkins

• Citation: 960 N.Y.S.2d 776,2013 N.Y. Slip Op. 01651,104 A.D.3d 1156
• Parties: The PEOPLE of the State of New York, Respondent, v. Mel T. WILKINS, also known as Melzer Wilkins, also known as Melzee Wilkins, Defendant–Appellant.
• Decision Date: 15 March 2013
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1156
960 N.Y.S.2d 776
2013 N.Y. Slip Op. 01651

The PEOPLE of the State of New York, Respondent,
v.
Mel T. WILKINS, also known as Melzer Wilkins, also known as Melzee Wilkins, Defendant–Appellant.

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

March 15, 2013.

[960 N.Y.S.2d 777]

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant.

Mel T. Wilkins, Defendant–Appellant Pro Se.

Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.

MEMORANDUM:

[104 A.D.3d 1156]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] ), criminal possession of a weapon in the third degree (§ 265.02[1] ), resisting arrest (§ 205.30), and unlawful possession of marihuana (§ 221.05), defendant contends that the evidence is legally insufficient on all counts except for unlawful possession of marihuana and that the verdict is against the weight of the evidence to that extent. We reject those contentions. The evidence, viewed in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), is legally sufficient to support the conviction with respect to the weapon counts under a theory of constructive possession ( see People v. Sierra, 45 N.Y.2d 56, 59–60, 407 N.Y.S.2d 669, 379 N.E.2d 196).

[960 N.Y.S.2d 778]

Specifically, defendant owned the premises where the weapon was found, he testified that he lived there part-time, and he was there when the search warrant was executed. Thus, the evidence is legally sufficient to establish that defendant exercised dominion and control over the area where the weapon was located ( see People v. Shoga, 89 A.D.3d 1225, 1227, 933 N.Y.S.2d 126,lv. denied18 N.Y.3d 886, 939 N.Y.S.2d 756, 963 N.E.2d 133). The evidence is also legally sufficient to support the conviction of resisting arrest. The evidence established that defendant struggled with police officers after [104 A.D.3d 1157]they were forced to remove him from a hiding place in a cubbyhole ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Furthermore, viewing the evidence in light of the elements of the crimes 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...