People v. Branch

186 A.D.3d 1705

130 N.Y.S.3d 834

The PEOPLE, etc., respondent,

v.Steven BRANCH, appellant.

2017–05106

Ind. No. 10124/16

Supreme Court, Appellate Division, Second Department, New York.

Argued - March 2, 2020

September 30, 2020

Paul Skip Laisure, New York, N.Y. (Jenin Younes of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Eunice Villantoy of counsel), for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel Lewis, J.), rendered April 27, 2017, convicting him of criminal possession of a firearm, criminal possession of a controlled substance in the seventh degree (two counts), criminally using drug paraphernalia in the second degree, unlawful possession of pistol ammunition, and possession or disposition of an unpermitted rifle or shotgun (two counts), after a nonjury trial, and imposing sentence.

ORDERED that the judgment is modified, on the facts, by vacating the convictions of criminal possession of a firearm and possession or disposition of an unpermitted rifle or shotgun (two counts), vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

On January 15, 2016, police officers executed a search warrant to look for narcotics and related paraphernalia in an apartment where the defendant resided. In the first bedroom, the officers found a 9 millimeter Taurus pistol and a loaded magazine for that pistol. The pistol was found in a shoe box inside the closet. Also inside the closet, the officers found a large black bag containing a 20 gauge Winchester shotgun, a .22 caliber Ruger rifle, and 12 20 gauge shotgun cartridges. The pistol, shotgun, and rifle were later found to be operable. The defendant, who resided in the third bedroom of the apartment, was convicted, after a nonjury trial, of, inter alia, criminal possession of a firearm and possession or disposition of an unpermitted rifle or shotgun (two counts). On appeal, the defendant contends that those convictions were against the weight of the evidence.

"Upon [a] defendant's request, the Appellate Division must conduct a weight of the evidence review" and, thus, "a defendant will be given one appellate review of adverse factual findings" ( People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). "If a finding in favor of the defendant would not have been unreasonable, then this Court ‘must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions’ " ( People v. Curry, 112 A.D.3d 843, 844, 976 N.Y.S.2d 571, quoting People v. Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). "Once this Court conducts such an analysis, it must then decide whether the verdict finding the defendant guilty beyond a reasonable doubt was warranted" ( People v. Curry, 112 A.D.3d at 844, 976 N.Y.S.2d 571 ). If the factfinder failed to give the evidence the weight it should be accorded, then this Court must dismiss the accusatory instrument or any reversed count (see CPL 470.20[5] ; People v. Romero, 7 N.Y.3d 633, 643–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 ; People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ).

Here, the People contended at trial that the defendant constructively possessed the weapons. "To support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found" ( People v. Williams, 170 A.D.3d 1046, 1047, 96 N.Y.S.3d 273 ; see Penal Law § 10.00[8] ; People v. Muhammad, 16 N.Y.3d 184, 188, 920 N.Y.S.2d 760, 945 N.E.2d 1010 ; People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 594 N.E.2d 563 ). "Constructive possession may be established by direct evidence or by circumstantial evidence with inferences...