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

517
KA 08-02360
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MELCHI N. JONES, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered May 15, 2008. The judgment convicted defendant, upon a
jury verdict, of 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 upon a jury
verdict of criminal possession of a weapon in the third degree (Penal
Law § 265.02 [1]), defendant contends that the jury failed to weigh
the evidence properly in determining that defendant constructively
possessed the weapon. We reject that contention. In order to
establish that a defendant has constructive possession of tangible
property, “the People must show that the defendant exercised ‘dominion
or control’ over the property by a sufficient level of control over
the area in which the contraband is found or over the person from whom
the contraband is seized” (People v Manini, 79 NY2d 561, 573; see
Penal Law § 10.00 [8]). Here, there was ample evidence from which the
jury could conclude that defendant constructively possessed the gun.

     The weapon was recovered during the execution of a search warrant
for the downstairs apartment of a two-family residence owned by
defendant. At the time the warrant was executed, defendant was the
sole occupant of the apartment. Defendant was not wearing any shoes
and, before he exited the apartment, he asked the police officers to
give him a pair of size 11½ shoes that were located in the kitchen.
The officers testified that there were at least three other pairs of
size 11½ shoes in one of the bedrooms. Multiple documents bearing
defendant’s name, including a W-2 tax form, were located inside the
apartment. Additionally, defendant had been observed entering the
downstairs apartment during prior surveillance of the apartment.
                                 -2-                           517
                                                         KA 08-02360

Viewing the evidence in light of the elements of this possessory crime
as charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see People v Davis, 101 AD3d 1778, 1779-1780, lv denied 20 NY3d 1060;
People v Holley, 67 AD3d 1438, 1439, lv denied 14 NY3d 801; see
generally People v Bleakley, 69 NY2d 490, 495).

     Contrary to defendant’s further contention, County Court properly
refused to suppress evidence seized by the police inasmuch as the
confidential informant’s existence and basis of knowledge were
sufficiently established at the in camera Darden hearing (see People v
Darden, 34 NY2d 177, 181). Following our review of the sealed
transcript of the Darden hearing, as well as the court’s summary
report, we conclude that the court properly determined that “the
informant existed and that he provided the information to the police
concerning the [presence of a gun] at the specified location” (People
v Wilson, 48 AD3d 1099, 1100, lv denied 10 NY3d 845; see People v
Santiago, 142 AD3d 1390, 1390-1391, lv denied 28 NY3d 1127; People v
Brown [appeal No. 1], 93 AD3d 1231, 1231, lv denied 19 NY3d 958).




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
