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

533
KA 13-01590
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GEORGE CAMPBELL, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NATHANIEL C.
KAPPERMAN OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered May 10, 2013. The judgment convicted
defendant, upon a nonjury verdict, of criminal possession of a weapon
in the second degree, driving while intoxicated, a misdemeanor,
driving while ability impaired by the combined influence of drugs or
of alcohol and any drug or drugs, improper automobile equipment and
improper license plates.

     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, inter alia, criminal possession of a
weapon in the second degree (Penal Law § 265.03 [3]). We reject
defendant’s contention that the evidence is legally insufficient to
establish the element of possession with respect to that crime (see
generally People v Bleakley, 69 NY2d 490, 495). The loaded handgun
was discovered inside a sock on the floor under the driver’s seat of
the vehicle defendant was driving, and DNA taken from the sock was
consistent with defendant’s DNA. That evidence, along with the
statutory presumption of possession set forth in Penal Law § 265.15
(3), is legally sufficient to establish defendant’s constructive
possession of the handgun (see People v Ward, 104 AD3d 1323, 1324, lv
denied 21 NY3d 1011). Defendant failed to preserve for our review his
further challenge to the legal sufficiency of the evidence with
respect to the operability of the weapon (see People v Gray, 86 NY2d
10, 19). Furthermore, inasmuch as that challenge to the legal
sufficiency of the evidence lacks merit (see People v Cavines, 70 NY2d
882, 883; see also People v Brown, 107 AD3d 1477, 1478, lv denied 21
NY3d 1040), defense counsel’s failure to preserve it for our review
does not constitute ineffective assistance of counsel (see People v
Cole, 111 AD3d 1301, 1302). Finally, viewing the evidence in light of
                                 -2-                           533
                                                         KA 13-01590

the elements of the crime of criminal possession of a weapon in the
second degree 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 with respect to that crime (see generally Bleakley, 69
NY2d at 495).




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
