Opinion
22050
January 17, 2002.
Legal Aid Society, New York City (Andrew C. Fine, Andrew Freifeld and David Crow of counsel), for appellant.
William L. Murphy, District Attorney, Staten Island (Karen F. McGee of counsel), for respondent.
PRESENT: SCHOLNICK, P.J., PATTERSON and GOLIA, JJ.
DECIDED
Memorandum.
Judgment of conviction modified on the law and facts by vacating the conviction of endangering the welfare of a child, vacating the sentence imposed thereon, and dismissing said charge and, as so modified, affirmed.
The charges herein were based on defendant's purchase of a gun in the fall or early winter of 1995. Defendant admitted to his girlfriend that he purchased a gun, but she never saw one or knew of its whereabouts. No one knew where defendant hid it or if he still had it for approximately two years. About two months prior to December 5, 1997, defendant's 12-year old brother peered through a crack in the doorway of the bedroom belonging to defendant and his girlfriend and saw defendant alone holding what appeared to be the barrel of a gun. The brother did not tell defendant what he had observed. On December 5, the brother, without anyone's permission, entered defendant's bedroom and searched it for about an hour before finding the gun. It had been secreted in an old speaker-table behind many hanging clothes in a closet. The gun and its holster were wrapped in rags. The brother was eager to show what he had found to a friend and a fatal tragedy ensued.
The credible testimony adduced by the People to establish criminal possession of a weapon in the fourth degree amply supported the conviction. "Possess" means to "have physical possession or otherwise to exercise dominion or control over tangible property" (Penal Law § 10.00), which can mean physical or constructive possession of tangible property (People v. Torres, 68 N.Y.2d 677; People v. Sierra, 45 N.Y.2d 56). Constructive possession has been defined as including "dominion or control" over the property by a sufficient level of control over the area where the property is found (see, People v. Manini, 79 N.Y.2d 561, 573). Criminal possession of a weapon entails a continuing course of conduct (see, Matter of Johnson v. Morgenthau, 69 N.Y.2d 148, 152; People v. Sykes, 142 A.D.2d 697). In view of the proof showing defendant's purchase of the gun, its location in an old speaker in the corner of a closet in a room over which he had dominion and control, and the lack of knowledge on the part of anyone else of its existence, his conviction of criminal possession of a weapon should not be disturbed.
Endangering the welfare of a child occurs when a person "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old . . ." (Penal Law § 260.10). In interpreting this language, the court in People v. Johnson ( 95 N.Y.2d 368, 371) stated:
"Actual harm to the child need not result for criminal liability; it is 'sufficient that the defendant act in a manner which is likely to result in harm to the child, knowing of the likelihood of such harm coming to the child' . . ."
The court added:
"We have previously noted that when a statute imposes criminal liability for knowingly disregarding a risk, it does not require a particular outcome or actions aimed at a specific individual; the crime is solely defined by the risk of injury produced by defendant's conduct . . . The same can be said here. Endangering the welfare of a child is not defined by specifically targeted acts or individuals, but by conduct which a defendant knows will present a 'likelihood' of harm to a child (i.e., with an awareness of the potential for harm)" (id., at 372).
In the present case, the People are, in effect, advancing a per se rule. They are suggesting that possession of a weapon in a home with a child under 17 years of age makes the possessor guilty of endangering the welfare of such child because it is "likely" that injury will occur. Defendant herein apparently had his gun for two years. It was secreted in his bedroom and the evidence shows that his brother was not known as a "snoop" and that defendant had no knowledge that the presence and location of the gun had become known to his brother. The Court of Appeals held that the basis for conviction was conduct "which a defendant knows will present a 'likelihood' of harm to a child (i.e., with an awareness of the potential for harm)" (People v. Johnson, supra, at 372).
Under the circumstances, we find that the same was not established and that, accordingly, defendant's conviction for endangering the welfare of a child should be set aside.
Scholnick, P.J. and Golia, J., concur.
I concur with the majority opinion insofar as it reverses the conviction for endangering the welfare of a child. However, in my opinion, based on the particular facts herein, the People failed to establish the elements of criminal possession of a weapon in the fourth degree by legally sufficient evidence proving guilt beyond a reasonable doubt.
The People's case regarding the gun possession was based entirely on circumstantial evidence. Defendant's co-conspirator testified that two years prior to the incident, defendant told her that he purchased the gun, but she never saw the gun, either at the time of the alleged purchase or at any time thereafter. In addition, the People never established that the gun in the bedroom two years later was the same gun mentioned previously by the co-conspirator. Moreover, the stereo speaker in which the gun was allegedly found did not belong to defendant, and the room was closed, albeit unlocked. Finally, defendant was never seenclearly with the gun because his brother only thought he saw what appeared to be the "barrel" of a gun on the day he looked into defendant's room.
The standard of proof required by the People in a case such as this was set forth in People v. Way ( 59 N.Y.2d 361, 365) wherein it was held that:
"When a defendant's conviction is based, as here, entirely upon circumstantial evidence of his guilt, it is subject to strict judicial scrutiny, not because of any inherent weakness in this form of evidence, but to ensure that the jury has not relied upon equivocal evidence to draw unwarranted inferences or to make unsupported assumptions (People v. Kennedy, 47 N.Y.2d 196, 201; People v. Benzinger, 36 N.Y.2d 29, 32). The well-settled standard of proof in such cases is that the facts from which the inference of defendant's guilt is drawn must be 'inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis' (People v. Bearden, 290 N.Y. 478, 480; see, People v. Cleague, 22 N.Y.2d 363, 366)."
The standard for appellate review to determine whether the circumstantial evidence was legally sufficient to support the trial court's finding is "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt . . ." (People v. Grassi, 92 N.Y.2d 695, 697). In my opinion, the evidence, when viewed in the light most favorable to the People, was insufficient to satisfy said standard of proof.