Opinion
106744.
04-14-2016
The PEOPLE of the State of New York, Respondent, v. Raquad GRAHAM, Appellant.
Carolyn B. George, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Carolyn B. George, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, DEVINE and CLARK, JJ.
Opinion
CLARK, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered April 29, 2014 in Albany County, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree.
Defendant was charged with criminal possession of a weapon in the second degree based on allegations that he discarded a loaded firearm while being pursued by the police. Following a jury trial, he was convicted as charged and sentenced, as a second violent felony offender, to a prison term of 13 ½ years, followed by five years of postrelease supervision. Defendant appeals.
Defendant contends that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence because the People failed to prove constructive possession. In conducting a legal sufficiency analysis, we view the evidence in the light most favorable to the People and evaluate “whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] [internal citation omitted]; see People v. Cabey, 85 N.Y.2d 417, 420, 626 N.Y.S.2d 20, 649 N.E.2d 1164 [1995] ). As relevant here, a person is guilty of criminal possession of a weapon in the second degree when he or she possesses any loaded firearm outside of his or her home or place of business (see Penal Law § 265.03[3] ). “Constructive possession can be demonstrated where there is evidence—either direct or circumstantial—that [the] defendant exercised ‘dominion and control over the weapon or the area in which it was found’ ” (People v. Butler, 126 A.D.3d 1122, 1123, 4 N.Y.S.3d 751 [2015], lv. denied 25 N.Y.3d 1199, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015], quoting People v. Bellamy, 118 A.D.3d 1113, 1114, 987 N.Y.S.2d 666 [2014], lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ; see People v. Dawson, 110 A.D.3d 1350, 1352, 973 N.Y.S.2d 850 [2013], lv. denied 23 N.Y.3d 1035, 993 N.Y.S.2d 249, 17 N.E.3d 504 [2014] ). “Such possession ... ‘may be found even though others have access to the contraband or the area where it is located’ ” (People v. Rodwell, 122 A.D.3d 1065, 1067, 996 N.Y.S.2d 398 [2014], lv. denied 25 N.Y.3d 1170, 15 N.Y.S.3d 302, 36 N.E.3d 105 [2015], quoting People v. Perry, 116 A.D.3d 1253, 1254, 983 N.Y.S.2d 699 [2014] ; see People v. Stewart, 95 A.D.3d 1363, 1364, 943 N.Y.S.2d 302 [2012], lv. denied 19 N.Y.3d 1001, 951 N.Y.S.2d 477, 975 N.E.2d 923 [2012] ).
At trial, Albany City Police Officer Steven Sayre testified that he responded to a radio call indicating that defendant, for whom a parole warrant had been issued, had been spotted in a nearby area and that, upon locating defendant, he exited his vehicle and directed defendant to raise his hands and get on the ground. Sayre asserted that, although defendant initially complied and raised his hands, defendant ultimately turned around, dropped his hands to his waistband and fled. Sayre stated that he pursued defendant through the rear of a vacant lot and observed him jump over a fence and, as defendant approached another portion of the fence, drop to the ground and begin “making movements with his hands grabbing towards his waistband or underneath his body.” Following defendant's apprehension, a functional, loaded handgun was discovered during a grid search of the path that defendant had traversed. Sayre testified that the weapon was found in the area where defendant had dropped to the ground. DNA retrieved from the weapon was too complex for comparison, but was consistent with DNA from at least two donors, at least one of which was male. Viewing this evidence in the light most favorable to the People, we find that a valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the jury that defendant constructively possessed the handgun retrieved after his apprehension (see People v. Graham, 107 A.D.3d 1296, 1297–1298, 967 N.Y.S.2d 531 [2013] ; People v. Pope, 96 A.D.3d 1231, 1234, 947 N.Y.S.2d 634 [2012], lv. denied 20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 [2013] ). Further, although a contrary verdict would not have been unreasonable if the jury had believed the defense's theory that the weapon was a “community gun” shared by gang members and stashed in the vacant lot, viewing the evidence in a neutral light and according deference to the jury's credibility assessments, we do not find that the verdict is against the weight of the evidence (see People v. Butler, 126 A.D.3d at 1123, 4 N.Y.S.3d 751 ; People v. Mateo, 13 A.D.3d 987, 988, 786 N.Y.S.2d 671 [2004], lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484 [2005] ; compare People v. Graham, 107 A.D.3d at 1298, 967 N.Y.S.2d 531 ).
Defendant also argues that he received ineffective assistance of counsel because, among other things, his former attorney filed an untimely motion to dismiss the indictment on the ground that the People did not provide adequate notice of the grand jury presentment so as to “accord [defendant] a reasonable time to exercise his right to appear as a witness” (CPL 190.50[5][a] ). The record establishes that, prior to indictment, defendant was represented by the Public Defender's office, that the People provided that office with notice of the grand jury proceeding and that attempts were made to notify defendant of the proceeding. However, it is not clear on this record whether the notice afforded defendant an ample opportunity to consult with his counsel about the possibility of appearing before the grand jury, as was his right (see Hurrell–Harring v. State of New York, 15 N.Y.3d 8, 21–22, 904 N.Y.S.2d 296, 930 N.E.2d 217 [2010] ; see also People v. Chapman, 69 N.Y.2d 497, 500, 516 N.Y.S.2d 159, 508 N.E.2d 894 [1987] ), and, if he did consult with counsel, whether they reached an agreement on that matter. As the answers to these factual questions, and others, are outside the record, defendant's claim would require a CPL 440.10 motion (see People v. Harrison, 304 A.D.2d 376, 377, 758 N.Y.S.2d 300 [2003], lv. denied 100 N.Y.2d 621, 767 N.Y.S.2d 404, 799 N.E.2d 627 [2003] ; see also People v. Lasher, 74 A.D.3d 1474, 1475, 902 N.Y.S.2d 262 [2010], lv. denied 15 N.Y.3d 894, 912 N.Y.S.2d 582, 938 N.E.2d 1017 [2010] ; People v. McMoore, 203 A.D.2d 612, 614, 609 N.Y.S.2d 964 [1994], lv. denied 86 N.Y.2d 798, 632 N.Y.S.2d 511, 656 N.E.2d 610 [1995], cert. denied 516 U.S. 1096, 116 S.Ct. 822, 133 L.Ed.2d 765 [1996] ). Moreover, we note that, without more, the failure to timely file a motion to dismiss the indictment on CPL 190.50(5) grounds does not constitute ineffective assistance of counsel (see People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845 [1996] ; People v. Hogan, 118 A.D.3d 1263, 1264, 986 N.Y.S.2d 907 [2014], affd. 26 N.Y.3d 779 [2016] ; People v. Harrison, 304 A.D.2d at 377, 758 N.Y.S.2d 300 ). With regard to his remaining claims of ineffective assistance of counsel, upon review of the record as a whole, we are satisfied that defendant received meaningful representation (see People v. DeCarr, 130 A.D.3d 1365, 1368, 15 N.Y.S.3d 252 [2015], lv. denied 26 N.Y.3d 1008, 20 N.Y.S.3d 548, 42 N.E.3d 218 [2015] ; People v. Griffin, 128 A.D.3d 1218, 1220, 9 N.Y.S.3d 471 [2015] ).
Further, we cannot say that Supreme Court abused its discretion or that extraordinary circumstances exist that warrant a modification of defendant's lawful sentence, which was below the statutory maximum (see Penal Law §§ 70.04 [3 ][b]; 265.03[3]; People v. Edwards, 124 A.D.3d 988, 992, 1 N.Y.S.3d 523 [2015], lv. denied 25 N.Y.3d 1201, 16 N.Y.S.3d 523, 37 N.E.3d 1166 [2015] ). Despite his young age, defendant was a second violent felony offender, having been previously convicted of criminal possession of a weapon in the second degree, was on parole at the time of this offense and had previously violated parole.
Defendant's remaining contentions, including that the indictment was jurisdictionally defective and that Supreme Court abused its discretion in admitting opinion testimony from the DNA analyst, have been thoroughly examined and found to be without merit.
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, ROSE and DEVINE, JJ., concur.