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

491
KA 12-02144
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMEL S. MONTGOMERY, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered August 21, 2012. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree (two counts) and criminal possession of a
weapon in the third 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 two counts of criminal possession of a weapon
in the second degree (Penal Law § 265.03 [1] [b]; [3]) and one count
of criminal possession of a weapon in the third degree (§ 265.02 [3]),
based on his constructive possession of a firearm. Contrary to
defendant’s contention, we conclude that, upon weighing the evidence
in light of the elements of the crimes as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), the verdict is not against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). The police found the weapon inside a gym bag in the bedroom of
a house in which they were executing a search warrant. The gym bag
was in a dresser drawer, and two documents with defendant’s name
and/or his date of birth and the address of the house that was
searched were located either inside the gym bag or next to it. The
address and date of birth on the documents matched the pedigree
information that defendant provided to the police. In addition, two
police witnesses testified that they observed a pair of large pants in
the bedroom, and the evidence established that defendant is 5 feet 6
inches tall and weighed 270 pounds. Thus, the jury did not fail to
give the evidence the weight that it should be accorded in finding
that defendant was in constructive possession of the firearm (see
generally People v Boyland, 79 AD3d 1658, 1659, affd 20 NY3d 879).
                                 -2-                           491
                                                         KA 12-02144

      Defendant further contends that Supreme Court erred in permitting
police witnesses to provide limited testimony regarding the reason for
their presence at the premises, without identifying the information
upon which the search warrant was based or its purpose, because the
evidence was unduly prejudicial. We reject that contention (see
generally People v Alvino, 71 NY2d 233, 241-242). We conclude that
the testimony of the police witnesses that they were part of a unit
that investigated narcotics and illegal gun offenses, and that a
photograph of defendant had been provided at a briefing, was properly
admitted because it was “ ‘needed as background material’ . . . or to
‘complete the narrative of the episode’ ” (People v Till, 87 NY2d 835,
837).




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
