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

1304
KA 11-01536
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEITH JACKSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM G. PIXLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered June 1, 2011. The judgment convicted
defendant, after a nonjury trial, of criminal possession of a weapon
in the second degree, criminal possession of a weapon in the third
degree, criminal possession of a weapon in the fourth degree and
unlawful possession of marihuana.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]), criminal possession of a
weapon in the third degree (§ 265.02 [1]), criminal possession of a
weapon in the fourth degree (§ 265.01 [4]), and unlawful possession of
marihuana (§ 221.05). The conviction resulted from the seizure, inter
alia, of weapons and marihuana during the execution of a search
warrant. Defendant and another man were present in the apartment when
the warrant was executed.

     Defendant contends that the verdict is against the weight of the
evidence inasmuch as County Court failed to accord appropriate weight
to the evidence that, when the police arrived at the apartment to
execute the warrant, the other man was selling drugs while defendant
was merely watching television. We reject that contention. Viewing
the evidence in light of the elements of the crimes in this nonjury
trial (see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495). The People presented credible
evidence that defendant “ ‘had dominion and control over the area
where the contraband was found’ ” (People v Shoga, 89 AD3d 1225, 1227,
lv denied 18 NY3d 886). The fact that the other man also had access
                                 -2-                          1304
                                                         KA 11-01536

to the apartment did “not preclude a finding of constructive
possession by defendant because possession may be joint” (People v
Archie, 78 AD3d 1560, 1561, lv denied 16 NY3d 856). Thus, based on
the weight of the credible evidence at trial, we conclude that the
court was justified in finding defendant guilty beyond a reasonable
doubt (see Danielson, 9 NY3d at 349).




Entered:   December 31, 2015                   Frances E. Cafarell
                                               Clerk of the Court
