                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 12, 2015                     105216
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

PARRISH BUTLER,
                    Appellant.
________________________________


Calendar Date:    January 7, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                              __________


      James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                              __________


Devine, J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered May 30, 2012, upon a verdict convicting
defendant of the crime of criminal possession of a weapon in the
second degree.

      While attempting to flee from pursuing police officers,
defendant allegedly discarded a loaded handgun. He was
thereafter arrested and charged with criminal possession of a
weapon in the second degree. Following a jury trial, defendant
was found guilty as charged and was subsequently sentenced to 5½
years in prison followed by five years of postrelease
supervision. Defendant now appeals.
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      We first address defendant's claim that his conviction was
against the weight of the evidence.1 In particular, defendant
limits his argument to the claim that the People failed to prove
beyond a reasonable doubt that he constructively possessed the
handgun that was secured prior to his arrest. We disagree.

      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" (People v Bellamy, 118 AD3d 1113, 1114
[2014]; see People v Perry, 116 AD3d 1253, 1254 [2014]; People v
Dawson, 110 AD3d 1350, 1352 [2013], lv denied 23 NY3d 1035
[2014]; People v Stewart, 95 AD3d 1363, 1364 [2012], lv denied 19
NY3d 1001 [2012]; People v Pinkney, 90 AD3d 1313, 1314 [2011]).
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


    1
        Defendant's nonspecific motion to dismiss was inadequate
to preserve his legal sufficiency argument (see People v Hawkins,
11 NY3d 484, 492 [2008]), but our review of his claim that the
verdict was against the weight of the evidence requires us to
review the sufficiency of the evidence relating to each element
of the charged crime (see People v Simmons, 111 AD3d 975, 977-978
[2013], lv denied 22 NY3d 1203 [2014]).
                              -3-                105216

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.

      Conversely, defendant denied that he possessed any weapon
on the night in question and averred that he fled from the police
officers because he had some marihuana tucked into his underwear.
Such testimony created a credibility issue for the jury to decide
(see People v Perry, 116 AD3d at 1255). While defendant argues
that the verdict is unsupportable due to, among other things, the
absence of evidence that the handgun contained his DNA or had
been found on his person, "viewing 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 Stewart, 95 AD3d at
1364).

      Finally, defendant contends that the sentence was harsh and
excessive, specifically asserting that, because he was 18 years
of age at the time the crime was conducted and had no prior
felony convictions, County Court abused its discretion by failing
to adjudicate him as a youthful offender. We agree with the
People's responsive argument that, inasmuch as defendant was
convicted of an armed felony, he was required to demonstrate
"mitigating circumstances that bear directly upon the manner in
which the crime was committed" (CPL 720.10 [3] [i]; see CPL
720.10 [2] [a] [ii]; People v Brodhead, 106 AD3d 1337, 1337
[2013], lv denied 22 NY3d 1087 [2014]). Here, defendant failed
to describe any mitigating factors that may have existed.
Moreover, defendant's claim that his "clean" criminal record
merits a reduced sentence is lacking in merit, as the record
shows that there was a criminal possession of a weapon in the
second degree charge pending at the time of his arrest for the
instant crime. Thus, we cannot say that County Court abused its
discretion or that extraordinary circumstances exist that would
require a modification of defendant's sentence (see People v
Bellamy, 118 AD3d at 1117; People v Shoga, 89 AD3d 1225, 1232
[2011], lv denied 18 NY3d 886 [2012]; People v Appleby, 79 AD3d
                             -4-                  105216

1533, 1534 [2010]).

     Lahtinen, J.P., Garry and Rose, JJ., concur.



     ORDERED that the judgment is affirmed.




                            ENTER:




                            Robert D. Mayberger
                            Clerk of the Court
