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

90
KA 11-00190
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

MEL T. WILKINS, ALSO KNOWN AS MELZER WILKINS,
ALSO KNOWN AS MELZEE WILKINS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MEL T. WILKINS, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered November 12, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree, criminal possession of a weapon in the third
degree, resisting arrest and unlawful possession of marihuana.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law and as a matter of discretion in the
interest of justice by reversing that part convicting defendant under
count two of the indictment and dismissing that count and by vacating
the sentence imposed for criminal possession of a weapon in the second
degree and as modified the judgment is affirmed, and the matter is
remitted to Supreme Court, Erie County, for resentencing on that
offense.

     Memorandum: On appeal from a judgment convicting him, upon a
jury verdict, of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), criminal possession of a weapon in the third
degree (§ 265.02 [1]), resisting arrest (§ 205.30), and unlawful
possession of marihuana (§ 221.05), defendant contends that the
evidence is legally insufficient on all counts except for unlawful
possession of marihuana and that the verdict is against the weight of
the evidence to that extent. We reject those contentions. The
evidence, viewed in the light most favorable to the prosecution (see
People v Contes, 60 NY2d 620, 621), is legally sufficient to support
the conviction with respect to the weapon counts under a theory of
constructive possession (see People v Sierra, 45 NY2d 56, 59-60).
Specifically, defendant owned the premises where the weapon was found,
he testified that he lived there part-time, and he was there when the
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                                                         KA 11-00190

search warrant was executed. Thus, the evidence is legally sufficient
to establish that defendant exercised dominion and control over the
area where the weapon was located (see People v Shoga, 89 AD3d 1225,
1227, lv denied 18 NY3d 886). The evidence is also legally sufficient
to support the conviction of resisting arrest. The evidence
established that defendant struggled with police officers after they
were forced to remove him from a hiding place in a cubbyhole (see
generally People v Bleakley, 69 NY2d 490, 495). Furthermore, viewing
the evidence in light of the elements of the crimes 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 with respect to the
challenged counts (see generally Bleakley, 69 NY2d at 495).

     Defendant contends that the search warrant was not properly
issued because Supreme Court failed to conduct an adequate examination
of the sworn testimony of the confidential informant to ensure that
the search warrant was issued in compliance with CPL 690.40. We
reject that contention. There was substantial compliance with the
requirements of CPL 690.40 (1), i.e., there was sworn testimony before
the issuing judge and the confidential informant’s testimony was both
recorded and summarized (see generally People v Serrano, 93 NY2d 73,
77-78). Nor was the search warrant overly broad because it authorized
a search of the entire premises (see generally People v Nieves, 36
NY2d 396, 401). There were varying descriptions of the specific
location of the drugs at the premises and the address was described as
a multiple dwelling. The court thus properly found that it was
reasonably clear that the dwelling area and the drug activities
encompassed both the lower and upper levels of the premises to be
searched.

     As the People correctly concede, however, count two, for criminal
possession of a weapon in the third degree, must be dismissed because
it is a lesser inclusory concurrent count of criminal possession of a
weapon in the second degree (see generally People v Rodrigues, 74 AD3d
1818, 1819, lv denied 15 NY3d 809, cert denied ___ US ___, 131 S Ct
1505). We therefore modify the judgment accordingly.

     We further modify the judgment by vacating the sentence imposed
for criminal possession of a weapon in the second degree because the
court advised defendant that his determinate sentence on that count
necessarily included a five-year period of postrelease supervision.
We note that the court was authorized to impose a shorter period of
postrelease supervision (see Penal Law § 70.45 [2] [f]), however, and
we thus exercise our power to review the issue as a matter of
discretion in the interest of justice (see People v King, 57 AD3d
1495, 1496), and we remit the matter to Supreme Court for resentencing
on that count (see People v Kropp, 49 AD3d 1339, 1340; People v
Figueroa, 17 AD3d 1130, 1131, lv denied 5 NY3d 788).

     We have considered defendant’s remaining contentions, including
those raised in his pro se supplemental brief, and conclude that they
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                                           KA 11-00190

are without merit.




Entered:   March 15, 2013         Frances E. Cafarell
                                  Clerk of the Court
