Opinion
412 KA 15–00115
03-23-2018
The PEOPLE of the State of New York, Respondent, v. Keion L. PETERSON, Defendant–Appellant.
KIMBERLY J. CZAPRANSKI, FAIRPORT, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
KIMBERLY J. CZAPRANSKI, FAIRPORT, FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
Memorandum:On appeal from a judgment convicting him after a nonjury trial of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that the conviction is not supported by legally sufficient evidence. We agree. Defendant was charged along with three others with various offenses based on allegations that they were in a vehicle and possessed, inter alia, an assault weapon. We previously concluded in the appeal of a codefendant that the evidence was not legally sufficient to support his conviction based on his possession of the same weapon under the same circumstances, inasmuch as the evidence did not support a finding of constructive possession of the weapon and the statutory presumption of possession set forth in Penal Law § 265.15(3) did not apply ( People v. Willingham , 158 A.D.3d 1158, 1159, ––– N.Y.S.3d –––– [4th Dept. 2018] ). Thus, for the reasons stated in our decision in the codefendant's appeal ( id. at 1158, ––– N.Y.S.3d –––– ), we conclude that defendant's conviction is also not supported by legally sufficient evidence. We therefore reverse the judgment and dismiss the indictment.
Defendant's remaining contentions are academic in light of our determination.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the indictment is dismissed, and the matter is remitted to Monroe County Court for proceedings pursuant to CPL 470.45.