        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

24
KA 12-00040
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHAUN BLACK, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered November 16, 2011. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]). We reject defendant’s contention
that the evidence is legally insufficient to establish that he
constructively possessed the weapon. Where, as here, “there is no
evidence that defendant actually possessed the [weapon], the People
must establish that defendant exercised dominion or control over the
property by a sufficient level of control over the area in which the
contraband [was] found or over the person from whom the contraband
[was] seized” (People v Pichardo, 34 AD3d 1223, 1224, lv denied 8 NY3d
926 [internal quotation marks omitted]; see People v Manini, 79 NY2d
561, 573; see also § 10.00 [8]). Here, we conclude that the evidence,
viewed in the light most favorable to the People (see People v Hines,
97 NY2d 56, 62, rearg denied 97 NY2d 678; People v Williams, 84 NY2d
925, 926), is legally sufficient to establish that defendant
constructively possessed the subject weapon (see generally People v
Bleakley, 69 NY2d 490, 495).

     We reject defendant’s further contention that he was deprived of
a fair trial by prosecutorial misconduct based on two comments made by
the prosecutor on summation. When defendant objected to the first
comment, Supreme Court gave a curative instruction and then overruled
the objection. Defendant did not thereafter request a further
curative instruction or move for a mistrial. Under those
                                 -2-                            24
                                                         KA 12-00040

circumstances, defendant’s contention with respect to the prosecutor’s
first comment is properly before us only insofar as his objection was
overruled because “ ‘the curative instruction[] [would] be deemed to
have corrected the error to the defendant’s satisfaction’ ” (People v
Lane, 106 AD3d 1478, 1480-1481, lv denied 21 NY3d 1043). Defendant
did not object to the second comment, however, and thus that part of
his contention is unpreserved for our review (see People v Young, 100
AD3d 1427, 1428, lv denied 20 NY3d 1105; see also CPL 470.05 [2]). In
any event, we conclude that reversal is not required based upon those
two instances of alleged misconduct (see People v Sweeney, 15 AD3d
917, 917, lv denied 4 NY3d 891; see generally People v Galloway, 54
NY2d 396, 401). Finally, the sentence is not unduly harsh or severe.




Entered:   February 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
