Defendant’s Being in the “General Area” Where Was Weapon Was Found and Defendant’s DNA on the Weapon Was Not Enough to Support Possession Conviction

The Third Department reversed defendant’s conviction for criminal possession of a weapon as against the weight of the evidence.  The evidence demonstrated that the defendant was in the general area where the gun was found and the defendant could not be excluded from the mixed DNA found on the gun.  The court wrote:

No one saw defendant with the gun, he was just near where it was found and his DNA was on it. The officer testified that defendant was 20 to 30 feet past the house, whereas Fox [defendant’s companion] was off his bicycle and appeared to be doing something near the house. The officer further testified that he found the gun in front of that house, and vaguely stated that defendant  was  in “the general area” where the gun was found. This does not prove that defendant possessed the gun on Sheridan Avenue at that time. Based  on  the  testimony  of the  officer and  the  forensic scientist, it is possible that Fox – who  the officer had seen directly in front of the house – could have had the gun and left it on the ground at that time, and defendant’s DNA could have been there from handling  it previously (which  may  prove  that defendant handled the  gun at some  point, but not  at the date and time alleged in the  indictment) or through  secondary  transfer (i.e., if Fox  touched defendant  and  then  the  gun,  transferring some  of defendant’s DNA onto the gun). Because this scenario is equally likely to have occurred, we cannot say that the weight of the evidence supports the verdict finding defendant guilty  ….  People v Graham, 104177, 3rd Dept 6-27-13