Opinion
1042 KA 15-01951
11-13-2020
The PEOPLE of the State of New York, Respondent, v. Earl L. WRIGHT, II, Defendant-Appellant.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (JOHN A. HERBOWY OF COUNSEL), FOR DEFENDANT-APPELLANT. SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (JOHN A. HERBOWY OF COUNSEL), FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (EVAN A. ESSWEIN OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and criminal possession of a controlled substance in the third degree (§ 220.16 [1] ), defendant contends that the evidence is not legally sufficient to establish that he possessed the weapon and drugs involved. Because defendant made only a general motion to dismiss the indictment at the close of the People's case, he failed to preserve that contention for our review (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Moore , 125 A.D.3d 1304, 1305, 1 N.Y.S.3d 719 [4th Dept. 2015] ).
In any event, we reject defendant's contention. "It is well settled that, even in circumstantial evidence cases, the standard for appellate review of legal sufficiency issues is ‘whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the [jury] on the basis of the evidence at trial, viewed in the light most favorable to the People’ " ( People v. Hines , 97 N.Y.2d 56, 62, 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] ). Here, viewing the evidence in that light (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), we conclude that the circumstantial evidence is legally sufficient to establish that defendant possessed the weapon that was found in bushes next to where he was taken into custody (see People v. Jordan , 157 A.D.3d 413, 413, 69 N.Y.S.3d 10 [1st Dept. 2018], lv denied 31 N.Y.3d 984, 77 N.Y.S.3d 662, 102 N.E.3d 439 [2018] ; People v. Primakov , 105 A.D.3d 1397, 1398, 963 N.Y.S.2d 496 [4th Dept. 2013], lv denied 21 N.Y.3d 1045, 972 N.Y.S.2d 542, 995 N.E.2d 858 [2013] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and the heroin that was found in the back seat of the patrol vehicle in which he was transported from that location (see People v. McCoy , 266 A.D.2d 589, 591-592, 699 N.Y.S.2d 131 [3d Dept. 1999], lv denied 94 N.Y.2d 905, 707 N.Y.S.2d 389, 728 N.E.2d 988 [2000] ). With respect to both the gun and the drugs, "the element of [possession] was established by a compelling chain of circumstantial evidence that had no reasonable explanation except that defendant" possessed those items ( People v. Brown , 92 A.D.3d 1216, 1217, 937 N.Y.S.2d 803 [4th Dept. 2012], lv denied 18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ).
Contrary to defendant's further contention, 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 [2007] ), we conclude that the verdict is not against the weight of the evidence.