Opinion
533 KA 13-01590
05-01-2015
The PEOPLE of the State of New York, Respondent, v. George CAMPBELL, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Nathaniel C. Kapperman of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of Counsel), for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nathaniel C. Kapperman of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals from a judgment convicting him following a nonjury trial of, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ). We reject defendant's contention that the evidence is legally insufficient to establish the element of possession with respect to that crime (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). The loaded handgun was discovered inside a sock on the floor under the driver's seat of the vehicle defendant was driving, and DNA taken from the sock was consistent with defendant's DNA. That evidence, along with the statutory presumption of possession set forth in Penal Law § 265.15(3), is legally sufficient to establish defendant's constructive possession of the handgun (see People v. Ward, 104 A.D.3d 1323, 1324, 960 N.Y.S.2d 839, lv. denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1286 ). Defendant failed to preserve for our review his further challenge to the legal sufficiency of the evidence with respect to the operability of the weapon (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ). Furthermore, inasmuch as that challenge to the legal sufficiency of the evidence lacks merit (see People v. Cavines, 70 N.Y.2d 882, 883, 524 N.Y.S.2d 178, 518 N.E.2d 1170 ; see also People v. Brown, 107 A.D.3d 1477, 1478, 967 N.Y.S.2d 319, lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 ), defense counsel's failure to preserve it for our review does not constitute ineffective assistance of counsel (see People v. Cole, 111 A.D.3d 1301, 1302, 974 N.Y.S.2d 709 ). Finally, viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the second degree in this nonjury trial (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 with respect to that crime (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.