                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 20, 2014                   104704
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JAY RODWELL,
                    Appellant.
________________________________


Calendar Date:   October 7, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ.

                             __________


      James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                             __________


Stein, J.

      Appeal from a judgment of the Supreme Court (Lamont, J.),
rendered March 25, 2011 in Albany County, upon a verdict
convicting defendant of the crime of criminal possession of a
weapon in the fourth degree.

      On October 16, 2009, police officers were dispatched to the
300 block of First Street in the City of Albany in response to a
report of shots fired. A resident of the neighborhood informed
the officers that he had observed individuals that he believed
were involved in the shooting enter a two-family house located at
330 First Street. Two officers were assigned to the back of the
house while two other officers knocked on the front door. One of
the officers located in the back of the house was looking in the
                              -2-                104704

rear window when he observed defendant – who he knew from
previous interactions – and another individual go into the
basement and return a brief time later. A subsequent search of
the basement revealed a 9 millimeter pistol, a box of 9
millimeter ammunition and a .22 caliber rifle hidden in a sump
well. Defendant was thereafter charged with criminal possession
of a weapon in the second degree regarding the pistol and
criminal possession of a weapon in the fourth degree regarding
the rifle. Following a jury trial, defendant was acquitted of
criminal possession of a weapon in the second degree, but was
found guilty of criminal possession of a weapon in the fourth
degree, a misdemeanor (see Penal Law § 265.01 [1]). Supreme
Court thereafter sentenced defendant to six months in jail.
Defendant now appeals and we affirm.

      We reject defendant's contention that the verdict is not
based upon legally sufficient evidence or that it is not in
accord with the weight of the evidence. A person is guilty of
criminal possession of a weapon in the fourth degree when such
person "possesses any firearm" (Penal Law § 265.01 [1]). As
relevant here, a firearm is defined as "any weapon made from a
shotgun or rifle whether by alteration, modification, or
otherwise if such weapon as altered, modified, or otherwise has
an overall length of less than [26] inches" (Penal Law § 265.00
[3] [d]). It is undisputed that the subject rifle had been
altered by the removal of the rifle stock, resulting in the
weapon measuring 24½ inches in length.

      As to possession, "'[w]here, as here, the People proceed
upon the theory of constructive possession, they bear the burden
of establishing that defendant exercised dominion and control
over the contraband or the area where the contraband was found'"
(People v Perry, 116 AD3d 1253, 1254 [2014], quoting People v
Dawson, 110 AD3d 1350, 1352 [2013], lv denied 23 NY3d 1035
[2014]; see People v Stewart, 95 AD3d 1363, 1364 [2012], lv
denied 19 NY3d 1001 [2012]). Such possession "may be established
through either direct or circumstantial evidence, and may be
found even though others have access to the contraband or the
area where it is located" (People v Perry, 116 AD3d at 1254; see
People v Pinkney, 90 AD3d 1313, 1314-1315 [2011]).
                              -3-                104704

      Here, the trial evidence established that defendant was
seen entering the basement moments before the rifle was
discovered there. Moreover, the manager of a sporting goods
store testified that the serial number of the rifle matched that
of a rifle that he had sold to defendant a month prior to this
incident. Despite the fact that others had access to the
basement, when we view the evidence presented in the light most
favorable to the People, we conclude that it was legally
sufficient to establish that defendant constructively possessed
the rifle (see People v Stewart, 95 AD3d at 1364; People v
Pinkney, 90 AD3d at 1315). Further, even if a different verdict
would not have been unreasonable, viewing the evidence in a
neutral light and according appropriate deference to the jury's
credibility determinations, we do not find the verdict to be
against the weight of the evidence (see People v Bleakley, 69
NY2d 490, 495 [1987]; People v Perry, 116 AD3d at 1255; People v
Pinkney, 90 AD3d at 1315).

      We also reject defendant's contention that Supreme Court
should have suppressed oral and written statements he made to
police. "Whether a statement is voluntary is a factual question
to be determined from the totality of the circumstances" (People
v Heesh, 94 AD3d 1159, 1160 [2012], lv denied 19 NY3d 961 [2012]
[citations omitted]; see People v Mattis, 108 AD3d 872, 874
[2013], lvs denied 22 NY3d 957 [2013]). Here, the record
establishes that defendant was read his Miranda rights before
making any statements, and he acknowledged that he understood his
rights, made no request to speak to an attorney and agreed to
speak to the police investigators. His statements were later
memorialized in a written document, which defendant read and
signed, again acknowledging his understanding of his rights and
that his statements were voluntary. Thus, Supreme Court properly
determined that defendant's statements were voluntarily made (see
People v Whitted, 117 AD3d 1179, 1181 [2014], lv denied 23 NY3d
1026 [2014]; People v Mattis, 108 AD3d at 874; People v Tompkins,
107 AD3d 1037, 1038 [2013], lv denied 22 NY3d 1044 [2013]).

      Defendant's remaining contentions do not require extended
discussion. Defendant's argument that the verdict is repugnant
is unpreserved for our review in light of his failure to object
prior to the jury being discharged (see People v Satloff, 56 NY2d
                              -4-                  104704

745, 746 [1982]; People v Hawkins, 110 AD3d 1242, 1244 [2013], lv
denied 22 NY3d 1041 [2013]; People v Coville, 73 AD3d 1232, 1232-
1233 [2010]; see also People v Muhammad, 17 NY3d 532, 541 n 5
[2011]). Were we to review defendant's argument, we would find
it to be lacking in merit. As to the sentence imposed, we
initially reject defendant's assertion that Supreme Court was
required to afford him youthful offender status pursuant to CPL
720.20 (1) (b), as the record indicates that he does not meet the
statutory requirement of having been convicted in a local
criminal court (see CPL 10.10 [3]; People v Robert Z., 134 Misc
2d 555, 557 [1986]). Moreover, given defendant's criminal
history, we cannot say that Supreme Court abused its discretion
in denying him youthful offender status (see CPL 720.20 [1];
People v Fernandez, 106 AD3d 1281, 1296 [2013]; People v Carter,
60 AD3d 1103, 1107 [2009], lv denied 12 NY3d 924 [2009]).
Finally, inasmuch as defendant has completed his six-month
sentence, his harsh and excessive claim is moot (see People v
Olmstead, 111 AD3d 1065, 1065 [2013]; People v Fusco, 91 AD3d
984, 985 [2012]; People v Nieves, 89 AD3d 1285, 1287 [2011]).

     Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
