         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1049
KA 09-00341
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CARL CAMPBELL, DEFENDANT-APPELLANT.


KIMBERLY J. CZAPRANSKI, INTERIM CONFLICT DEFENDER, ROCHESTER, FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Stephen R. Sirkin, A.J.), rendered November 20, 2008. The judgment
convicted defendant, upon a nonjury verdict, of criminal possession of
a weapon in the second degree and criminal possession of a weapon in
the third degree.

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

     Memorandum: On appeal from a judgment convicting him, following
a bench trial, of 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 [1]), defendant contends that the conviction is
not supported by legally sufficient evidence because the People failed
to establish that he had actual or constructive possession of the
weapon. We reject that contention (see generally People v Bleakley,
69 NY2d 490, 495). The People presented evidence that the police
found a loaded gun on the floor of the rear passenger seat of the
automobile in which defendant was a passenger. The statutory
presumption of possession set forth in Penal Law § 265.15 (3) provides
that “[t]he presence in an automobile, other than a stolen one or a
public omnibus, of any firearm [or] defaced firearm . . . is
presumptive evidence of its possession by all persons occupying such
automobile at the time such weapon . . . is found . . . .” The
statutory presumption establishes a prima facie case against a
defendant, which presumption he or she may rebut by offering evidence
(see People v Lemmons, 40 NY2d 505, 510).

     In People v Wilt (105 AD2d 1089, 1090), this Court concluded that
there was no “ ‘rational connection’ ” between the discovery of the
gun in the trunk of the vehicle in which the defendant was riding and
his presumed possession of the gun. We noted that defendant had
                                 -2-                          1049
                                                         KA 09-00341

testified in his own defense that he had only been in the vehicle for
five or six minutes to look for his girlfriend and did not know that a
gun was inside the trunk. Defendant also testified that he had never
looked in the trunk of the vehicle, which was missing its trunk lock.
We further noted that defendant’s testimony was corroborated by
several witnesses (see id. at 1090). Here, unlike in Wilt, the weapon
was found on the floorboards of the right rear passenger seat, and
defendant was in that passenger seat. Defendant chose not to testify
in his own defense and did not call any witnesses in order to rebut
the presumption. In our view, it was rational to presume that
defendant had both the ability and the intent to exercise dominion and
control over the weapon, and thus the evidence is legally sufficient
to establish that there was a “ ‘rational connection’ ” between the
discovery of the weapon and defendant’s presumed possession of the
weapon (id.; see Leary v United States, 395 US 6, 33-34; People v
Glenn, 185 AD2d 84, 89-90).

     Also contrary to defendant’s 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 Bleakley, 69 NY2d at
495). Even assuming, arguendo, that a different finding would not
have been unreasonable, we conclude that Supreme Court did not fail to
give the evidence the weight it should be accorded (see id.).




Entered:   September 28, 2012                  Frances E. Cafarell
                                               Clerk of the Court
