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Medical Examiner’s Testimony Did Not Rule Out the Possibility that Someone Other than the Defendant Contributed DNA to a Mixture from At Least Three Persons—Conviction Reversed as Against the Weight of the Evidence

The First Department, over a dissent, determined that defendant’s conviction of criminal possession of a weapon was against the weight of the evidence. The medical examiner testified there was a mixture of DNA from at least three persons found on the weapon and defendant “could” have been a contributor to that mixture. “In other words, the medical examiner could not rule out the reasonable possibility that another unrelated individual could match the DNA profile.”  The court explained its role in a “weight of the evidence,” as opposed to a “legal insufficiency,” analysis:

On this appeal, defendant does not ask us to reverse his convictions of criminal possession of a weapon in the second and third degrees on the ground that the trial evidence was legally insufficient to support such convictions. Instead, defendant argues that his convictions should be reversed because the jury’s verdict was against the weight of the evidence. An appellate court weighing the evidence “must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony'” … . “If based on all the credible evidence a different finding would not have been unreasonable” and if the “trier of fact has failed to give the evidence the weight it should be accorded, the appellate court may set aside the verdict” … . When an appellate court performs weight of the evidence review, it sits, in effect, as a “thirteenth juror” … .

We agree with defendant that the verdict was against the weight of the evidence … . The evidence failed to connect defendant with a pistol that had been discarded during a shooting incident. People v Graham, 2015 NY Slip Op 04401, 1st Dept 5-26-15

 

Attempted Criminal Possession of a Weapon Third Degree Is Not a Violent Felony When It is the Top Count of an Indictment—It is a Violent Felony Only If It Is a “Lesser Included” Offense

The Second Department determined defendant was improperly sentenced as a second violent felony offender.  Attempted criminal possession of a weapon in the third degree is not a violent felony when it is the top count in an indictment (as it was in this case).  It is only considered a violent felony when it is a “lesser included” offense:

In People v Dickerson (85 NY2d 870, 871-872), the Court of Appeals determined that a plea of guilty to attempted criminal possession of a weapon in the third degree, when charged in “the top count” of a superior court information, did not constitute a violent felony pursuant to Penal Law § 70.02(1)(d). Under Penal Law § 70.02(1)(d), the crime of attempted criminal possession of a weapon in the third degree constitutes a class E violent felony offense only when the defendant is convicted of such charge as “a lesser included offense . . . as defined in section 220.20 of the criminal procedure law.” CPL 220.20(1) defines a “lesser included offense” as one where the defendant pleads “to an offense of lesser grade than one charged in a count of an indictment.” “Thus, according to the plain statutory language, a class E violent felony offense is reserved for accuseds who plead guilty to attempted criminal possession of a weapon in the third degree as a lesser included offense under an indictment charging a greater offense” (People v Dickerson, 85 NY2d at 872). Here, in 2005, the defendant entered a plea of guilty to attempted criminal possession of a weapon in the third degree as the sole count of a superior court information. Therefore, the defendant’s conviction of that crime, upon his plea of guilty, did not constitute a violent felony pursuant to Penal Law § 70.02 (1)(d) … . People v Millazzo, 2015 NY Slip Op 03569, 2nd Dept 4-29-15

 

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Statutory Presumption of Possession of Weapons Recovered from Vehicle Confers on Vehicle-Occupants Automatic Standing to Move to Suppress

The First Department determined the People were relying exclusively on the statutory presumption that weapons recovered from inside a vehicle are possessed by all the occupants.  Therefore, the defendant had standing to move to suppress the weapons:

In opposition to defendant’s assertion that the weapon possession charges were based solely on the statutory presumption that weapons recovered from the interior of an automobile are deemed to be possessed by all its occupants (Penal Law § 265.15[3]), the People failed to “point to evidence reasonably tending to show the defendant’s actual or constructive possession” of the two pistols … . Instead, the People asserted that the statutory presumption did not apply, claiming erroneously that the two handguns at issue were recovered from the person of one of the car’s passengers (see Penal Law § 265.15[3][a]). The People concede on appeal that this argument was incorrect, because the two pistols (unlike a revolver found on the person of a passenger) were in fact recovered from a box on the back seat. There is no indication that the motion court relied either on the grand jury minutes or the search warrant affidavit. Because the People failed to adequately demonstrate that the charges relating to the two pistols were not based entirely on the statutory presumption, defendant had automatic standing to challenge seizure of those weapons … . People v Rivera, 2015 NY Slip Op 03396, 1st Dept 4-23-15

 

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“Constructive Possession” Theory Applied to Weapon Deemed to Have Been Discarded by Defendant During a Police Pursuit

The Third Department determined there was sufficient evidence defendant constructively possessed a weapon which was found near him after the police saw him discard something during a pursuit:

Constructive possession can be demonstrated where there is evidence — either direct or circumstantial — that defendant exercised “dominion and control over the weapon or the area in which it was found” … . The People presented testimonial evidence of several police officers, including Gregory McGee, who averred that, after hearing a gun shot during his overnight shift, his investigation led him to observe defendant turning a street corner on a bicycle. When defendant saw McGee’s marked police car, he became visibly nervous and immediately clutched the right side of his waistband. Believing that defendant was armed, McGee exited his vehicle, drew his firearm and ordered defendant to show his hands. Defendant refused to comply with the directive and a physical encounter ensued. As McGee holstered his handgun and attempted to grab his taser, defendant fled on his bicycle. McGee then radioed for assistance while pursuing defendant on foot and a responding police officer, Jason Seward, pulled his patrol car onto the sidewalk in order to block defendant. McGee testified that, as defendant ran around the patrol car, he observed defendant’s hand emerge from under his sweatshirt and throw something, which created a sound of “metal hitting the ground.” As Seward continued to pursue defendant, McGee found a handgun on the sidewalk a few feet from Seward’s patrol car. Shortly thereafter, defendant was apprehended and the handgun was later confirmed to contain three rounds of “live” ammunition and one spent shell casing, indicating that the handgun had been fired once.

… “[V]iewing the evidence in a neutral light and according deference to the jury’s credibility determinations,” we find that defendant had constructive possession of the gun such that the conviction was not contrary to the weight of the evidence … . People v Butler, 2015 NY Slip Op 105216, 3rd Dept, 3-12-15

 

Criminal Possession of a Weapon in the Third Degree Is Not a Lesser Inclusory Concurrent Count of Criminal Possession of a Weapon in the Second Degree

The Fourth Department determined that criminal possession of a weapon in the third degree is not a lesser inclusory concurrent count of criminal possession of a weapon in the second degree:

“[A] comparative examination of the statutes defining the two crimes, in the abstract” (People v Glover, 57 NY2d 61, 64), demonstrates that it is possible to commit criminal possession of a weapon in the second degree without by the same conduct committing criminal possession of a weapon in the third degree (compare § 265.02 [1] with § 265.03 [3]). For example, a defendant in possession of a loaded gun outside of his or her home or business who had not previously been convicted of any crime would be committing only the second-degree but not the third-degree offense. Because it is possible to commit the greater offense without committing the lesser one, the two counts are ” non-inclusory concurrent counts’ ” … . To the extent that the prior decision of this Court in People v Wilkins (104 AD3d 1156, lv denied 21 NY3d 1011) was based on an incorrect concession by the People and suggests a rule to the contrary, we conclude that Wilkins should no longer be followed. People v Puryear, 2015 NY Slip Op 00093, 4th Dept 1-2-15

 

Defendant’s Temporary Possession of a Weapon Was “Innocent”

The Fourth Department determined defendant’s conviction for possession of a weapon was against the weight of the evidence. Defendant’s half-brother handed her the weapon just before he became involved in an altercation.  The court determined defendant’s possession of the weapon was “innocent:”

“Under our law, in certain circumstances, the possession of a weapon may be innocent and not criminal. Innocent possession of a weapon is possession that is temporary and not for an unlawful purpose” … . “This defense of temporary and lawful’ possession applies because as a matter of policy the conduct is not deemed criminal” … . Furthermore, a “defendant is not required to prove that h[er] possession of the weapon was innocent. Rather, the People are required to prove beyond a reasonable doubt both that the defendant knowingly possessed the weapon and that such possession was not innocent” … . For this defense to be considered by the trier of fact, “there must be proof in the record showing a legal excuse for having the weapon in [one’s] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was] not used in a dangerous manner” … . People v Holes, 2014 NY Slip Op 04643, 4th Dept 6-20-14

 

Exclusive Access Not Required for Constructive Possession

The Third Department determined the proof of constructive possession of a weapon was sufficient.  The gun was found in a boot outside the door to the apartment where defendant lived.  He had been seen entering the building with a gun. The court noted that exclusive access to the area where contraband is found is not required to sustain a finding of constructive possession:

Constructive possession can be established by evidence that the defendant had dominion and control over the weapon or the area in which it was found … . Exclusive access, however, is not required to sustain a finding of constructive possession … . Here, the People established that defendant resided in the first-floor apartment with his girlfriend and their young son, and the loaded handgun was found in a man’s boot located in a hallway leading to that apartment among shoes belonging to defendant’s girlfriend and his son. The only other tenant in the building was an elderly woman who lived on the second floor. Although defendant denied ownership of the boots, he admitted that he kept some of his belongings in the hallway, and the People established the presence of his DNA on the weapon. The rational inferences to be drawn from this evidence are sufficient to support the conclusion that defendant exercised dominion and control over the weapon and the area in which it was found … . People v Bellamy, 2014 NY Slip Op 04262, 3rd Dept 6-12-14

 

Purchaser of a Firearm is an Accomplice of the Seller for Corroboration Purposes

The Third Department determined the trial court’s failure to instruct the jury that a witness against the defendant (Lewandowski) was an accomplice as a matter of law (requiring corroboration of his testimony) was reversible error. Lewandowski bought a firearm from the defendant and therefore was an accomplice of the seller for corroboration purposes:

“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense” (CPL 60.22 [1]). Pursuant to CPL 60.22, an accomplice is a person who “may reasonably be considered to have participated in . . . [t]he offense charged; or . . . [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2] [emphasis added]). Notably, the definition of an accomplice for the purpose of the corroboration rule differs significantly from the definition of an accomplice for purposes of accomplice criminal liability (…compare CPL 60.22 with Penal Law § 20.00). CPL 60.22 broadens the definition of an accomplice “‘in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable'”… . Thus, to be an accomplice for corroboration purposes, the witness “must somehow be criminally implicated and potentially subject to prosecution for the conduct or factual transaction related to the crimes for which the defendant is on trial” … .

Here, the evidence established that Lewandowski did not have a license to possess the handgun he bought from defendant. Thus, although Lewandowski could not be subject to prosecution for criminal sale of a firearm, he was potentially subject to prosecution for – and was, in fact, charged with – criminal possession of a weapon in the fourth degree since he unlawfully possessed the weapon as soon as he made the purchase (see Penal Law §§ 265.01 [1]; 265.20 [a] [3]). Just as the purchaser in a drug sale is, as a matter of law, an accomplice of the seller for corroboration purposes …, here Lewandowski was an accomplice as a matter of law with respect to defendant’s weapon sale and possession charges since he could have been (and was) charged with a crime “based upon some of the same facts or conduct” upon which the charges against defendant were based (CPL 60.22 [2] [b]…). County Court was therefore required to instruct the jury that Lewandowski was an accomplice as a matter of law as to those charges, and that defendant could not be convicted on Lewandowski’s testimony absent corroborative evidence… . People v Medeiros, 105941, 3rd Dept 4-3-13

 

Statute Which Elevates Criminal Possession of a Weapon to a C Felony, Even When Possession is in the Home, Does Not Violate the Second Amendment

In a full-fledged opinion by Judge Smith, the Court of Appeals determined that the statute which elevates possession of a weapon when previously convicted of a crime to a class C felony, even if possession is in the home, did not violate the Second Amendment right to bear arms:

Intermediate scrutiny requires us to ask whether a challenged statute bears a substantial relationship to the achievement of an important governmental objective (Clark v Jeter, 486 US 456, 461 [1988]).  Penal Law § 265.03 (3), making it a class C felony for anyone previously convicted of any crime to possess an unlicensed, loaded firearm in his home or elsewhere, easily passes this test.  The statute does not, it must be remembered, forbid anyone convicted of any misdemeanor from possessing a gun on pain of class C felony punishment; most misdemeanants — including the present defendant, assuming that resisting arrest was his only prior crime — are eligible for licenses to have guns in their homes.

It is beyond dispute that preventing the criminal use of firearms is an important government objective; and keeping guns away from people who have shown they cannot be trusted to obey the law is a means substantially related to that end.  More specifically, to punish severely a convicted criminal who, though eligible for a license, again violates the law by obtaining an unlicensed gun is a means well-suited to the end of assuring that lawbreakers do not have firearms.  People v Hughes, 184, CtApp 11-19-13

 

“Home or Business Exception” to Criminal Possession of a Weapon Does Not Apply to Defendant Previously Convicted of a Crime

In a full-fledged opinion by Judge Smith, the Court of Appeals determined the “home or business exception” to criminal possession of a weapon in the second degree did not apply when the defendant has been previously been convicted of any crime:

…[T]his appeal requires us to interpret the “home or business” exception to the third-degree weapon possession statute, Penal Law § 265.03 (3).  Under that statute:

“A person is guilty of criminal possession of a weapon in the second degree when:” (3) such person possesses any loaded firearm.  Such possession shall not, except as provided in subdivision one . . . of section 265.02 of this article, constitute a violation of this subdivision if such possession takes place in such person’s home or place of business.”

Section 265.02 (1), to which the above quoted language refers, defines criminal possession of a weapon in the third degree.  Under Penal Law § 265.02 (1), a person is guilty of third degree criminal possession when he or she “commits the crime of criminal possession of a weapon in the fourth degree . . . and has been previously convicted of any crime.”  The Appellate Division read the reference in section 265.03 (3) to section 265.02 (1) as creating an exception to the home or business exception — i.e., to make that exception inapplicable when the defendant has a previous criminal conviction.  We agree with this reading of the statute.  People v Jones, 185, CtApp 11-19-13

 

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