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

1001
KA 12-01480
PRESENT: CENTRA, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NICHOLAS J. JOHNSON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CAITLIN M. CONNELLY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered May 22, 2012. The judgment convicted
defendant, upon a nonjury verdict, of criminal possession of a weapon
in the second degree, criminal possession of a weapon in the third
degree, reckless driving, and improper automobile equipment.

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed sentence on the conviction of criminal possession of a
weapon in the third degree is dismissed and the judgment is otherwise
affirmed.

     Memorandum: On appeal from a judgment convicting him following a
nonjury trial of, inter alia, criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]) and criminal possession of a
weapon in the third degree (§ 265.02 [3]), defendant contends that
Supreme Court erred in admitting DNA test results into evidence
because there were gaps in the chain of custody of the gun from which
the DNA was recovered. We reject that contention inasmuch as the
People provided sufficient assurances of the identity and unchanged
condition of the gun (see People v Julian, 41 NY2d 340, 342-343), and
any alleged gaps in the chain of custody went to the weight of the
evidence and not its admissibility (see People v Cleveland, 273 AD2d
787, 788, lv denied 95 NY2d 864).

     We also reject defendant’s contention that the People’s evidence
at trial impermissibly varied from the indictment and bill of
particulars insofar as the People presented evidence of constructive
possession of the weapon at issue. Where the People have “specified
in the indictment and bill of particulars the manner in which
defendant committed the crime, [they are] not free to present evidence
at trial that virtually disprove[s] that theory and [to] substitute a
different one” (People v Johnson, 227 AD2d 927, 928, lv denied 88 NY2d
                                 -2-                          1001
                                                         KA 12-01480

1022, citing People v Grega, 72 NY2d 489, 498; see also People v
Gunther, 67 AD3d 1477, 1478). Here, however, the People advanced only
a “broad allegation” of possession prior to trial, one which did not
commit them to proving any one theory of possession (see People v
Foley, 210 AD2d 163, 163-164, lv denied 85 NY2d 861; cf. Gunther, 67
AD3d at 1477-1478). At trial, the People presented evidence
supporting a theory of constructive possession, and we conclude that
such evidence did not impermissibly vary from the bill of particulars,
and that defendant was not hampered in his ability to prepare for
trial (see People v Charles, 61 NY2d 321, 327).

      Contrary to defendant’s contention, the evidence, viewed in the
light most favorable to the People (see People v Contes, 60 NY2d 620,
621), is legally sufficient to support the conviction of the weapon
charges. Additionally, viewing the evidence in light of the elements
of those 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).
Defendant’s further contention that prosecutorial misconduct on
summation deprived him of a fair trial is not preserved for our
review, inasmuch as he failed to object to the allegedly inappropriate
statements (see People v James, 114 AD3d 1202, 1206-1207, lv denied 22
NY3d 1199). We decline to exercise our power to review that
contention as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]). Finally, we reject defendant’s contention that
he was denied effective assistance of counsel. Viewing the evidence,
the law, and the circumstances of the case, in totality and as of the
time of the representation, we conclude that defense counsel provided
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147).

     All concur except FAHEY, J., who concurs in the result in the
following Memorandum: I respectfully concur in the result reached by
the majority, namely, the dismissal of the appeal from the judgment
insofar as it imposed sentence on the conviction of criminal
possession of a weapon in the third degree and the affirmance of the
judgment. I write separately, however, to express my concerns with
the prosecutor’s mischaracterization on summation of the DNA evidence
linking defendant to the weapon. Those concerns were fully addressed
in another case recently before this Court involving a similar issue
(see People v Wright, 115 AD3d 1257, 1258-1263 [Fahey and Carni, JJ.,
dissenting], lv granted 22 NY3d 1204). In the present case, the
People’s forensic expert testified in relevant part that her analysis
established only that the DNA recovered from the weapon came from at
least four individuals, and that defendant could not be excluded as a
contributor to the DNA. In other words, the evidence placed defendant
in a class of people that could have contributed to the DNA (see id.
at 1262). The prosecutor nevertheless argued on summation that the
DNA analysis established defendant as the DNA’s contributor and that
he therefore had possessed the weapon at issue. In my view, the
prosecutor’s mischaracterization of “evidence of class as evidence of
exactitude” was improper (id.). I concur in the present case because,
unlike Wright, the verdict is justified by evidence other than the
results of DNA testing, and my review of the evidence establishes that
                                 -3-                          1001
                                                         KA 12-01480

Supreme Court, as the trier of fact, would have reached the same
result absent the prosecutor’s misconduct (cf. People v Mott, 94 AD2d
415, 419; see generally People v Bleakley, 69 NY2d 490, 495).




Entered:   October 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
