Opinion
687 KA 18–01628
07-24-2020
The PEOPLE of the State of New York, Respondent, v. Gerald HUNT, also known as Cheron Hunt, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the facts, the indictment is dismissed, and the matter is remitted to Erie County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). The conviction arises from the discovery at a border checkpoint of a loaded handgun in a duffle bag located inside the locked truck of a vehicle in which defendant was the backseat passenger.
Initially, by failing to renew his motion for a trial order of dismissal after presenting evidence, defendant failed to preserve his challenge to the legal sufficiency of the evidence (see People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ; People v. Brooks , 139 A.D.3d 1391, 1392–1393, 31 N.Y.S.3d 372 [4th Dept. 2016], lv denied 28 N.Y.3d 1026, 45 N.Y.S.3d 378, 68 N.E.3d 107 [2016] ). Nonetheless, " ‘we necessarily review the evidence adduced as to each of the elements of the crime[ ] in the context of our review of defendant's challenge regarding the weight of the evidence’ " ( People v. Stepney , 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ; see People v. Danielson , 9 N.Y.3d 342, 349–350, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). As charged to the jury here, a person is guilty of criminal possession of a weapon in the second degree when that person knowingly possesses any loaded firearm and such possession did not take place in such person's home or place of business (see Penal Law § 265.03[3] ; CJI2d[NY] Penal Law § 265.03[3] ). Such person "may be found to possess a firearm through actual, physical possession or through constructive possession" ( People v. McCoy , 169 A.D.3d 1260, 1262, 95 N.Y.S.3d 441 [3d Dept. 2019], lv denied 33 N.Y.3d 1033, 102 N.Y.S.3d 517, 126 N.E.3d 167 [2019] ; see § 10.00[8] ). To establish constructive possession, "the People must show that [such person] exercised ‘dominion or control’ over the [firearm] by a sufficient level of control over the area in which the [firearm] is found or over the person from whom the [firearm] is seized" ( People v. Manini , 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 [1992] ; see CJI2d[NY] Physical and Constructive Possession). We note that the People did not present a case based on the automobile presumption set forth in Penal Law § 265.15(3) and, thus, the jury was not provided with that charge (see People v. Worthington , 150 A.D.3d 1399, 1401–1402, 55 N.Y.S.3d 743 [3d Dept. 2017], lv denied 29 N.Y.3d 1095, 63 N.Y.S.3d 12, 85 N.E.3d 107 [2017] ).
Here, upon our independent review of the evidence in light of the elements of the crime as charged to the jury (see Danielson , 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we agree with defendant that the verdict is against the weight of the evidence inasmuch as the jury was not justified in finding beyond a reasonable doubt that defendant possessed the handgun in question (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). It is undisputed that the driver owned the vehicle and that the duffle bag belonged to him as well. The People relied on evidence that defendant's DNA profile matched that of the major contributor to DNA found on the handgun and that the driver was excluded as a contributor thereto. Although " ‘an inference could be made [from that evidence] that defendant had physically possessed the gun at some point in time’ " ( People v. Ward , 104 A.D.3d 1323, 1324, 960 N.Y.S.2d 839 [4th Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1286 [2013] ), that evidence alone does not establish that defendant actually possessed the handgun on the date and at the time alleged in the indictment (see People v. Graham , 107 A.D.3d 1296, 1298, 967 N.Y.S.2d 531 [3d Dept. 2013] ; cf. People v. Habeeb , 177 A.D.3d 1271, 1274, 112 N.Y.S.3d 386 [4th Dept. 2019], lv denied 34 N.Y.3d 1159, 120 N.Y.S.3d 253, 142 N.E.3d 1155 [2020] ).
Further, given the absence of other evidence, the People failed to establish that defendant "exercised dominion or control over the [handgun] by a sufficient level of control over the area in which [it was] found" ( People v. Burns , 17 A.D.3d 709, 710, 792 N.Y.S.2d 700 [3d Dept. 2005] [internal quotation marks omitted]; see People v. Diallo , 137 A.D.3d 1681, 1682, 27 N.Y.S.3d 778 [4th Dept. 2016] ; cf. Ward , 104 A.D.3d at 1324, 960 N.Y.S.2d 839 ). In this case, defendant's mere presence in the vehicle where the handgun was found did not establish that he constructively possessed it (see Burns , 17 A.D.3d at 710, 792 N.Y.S.2d 700 ; see also People v. Rolldan , 175 A.D.3d 1811, 1813, 109 N.Y.S.3d 534 [4th Dept. 2019], lv denied 34 N.Y.3d 1081, 116 N.Y.S.3d 142, 139 N.E.3d 800 [2019] ). Defendant was not the owner or operator of the vehicle, nor did the duffle bag in the locked trunk belong to him, and there was no evidence that defendant possessed or had access to the keys for the vehicle or that he had any access to or control over the trunk and duffle bag (see Burns , 17 A.D.3d at 711, 792 N.Y.S.2d 700 ; cf. Ward , 104 A.D.3d at 1324, 960 N.Y.S.2d 839 ; People v. Leader , 27 A.D.3d 901, 904, 811 N.Y.S.2d 196 [3d Dept. 2006] ). Contrary to the People's contention, defendant's statement to the police did not constitute an admission that he had possessed the handgun (cf. Ward , 104 A.D.3d at 1324, 960 N.Y.S.2d 839 ) or that he knew about its presence in the duffle bag and, in any event, mere knowledge of the presence of the handgun would not establish constructive possession (see People v. Mattison , 41 A.D.3d 1224, 1225, 837 N.Y.S.2d 464 [4th Dept. 2007], lv denied 9 N.Y.3d 924, 844 N.Y.S.2d 179, 875 N.E.2d 898 [2007] ; Burns , 17 A.D.3d at 711, 792 N.Y.S.2d 700 ; see generally People v. Rivera , 82 N.Y.2d 695, 697, 601 N.Y.S.2d 470, 619 N.E.2d 407 [1993] ). We therefore reverse the judgment of conviction and dismiss the indictment.
In light of our determination, we need not consider defendant's remaining contention.