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

404
KA 15-00426
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KAHLID A. KABIR, DEFENDANT-APPELLANT.


LAW OFFICES OF MATTHEW J. RICH, P.C., ROCHESTER (MATTHEW J. RICH OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered January 13, 2015. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]). Defendant contends that Supreme
Court erred in refusing to suppress the weapon because the police
recovered it during the search of a home without a warrant. We agree
with the court that, even assuming, arguendo, that defendant had
standing to contest the warrantless search, the People established
that the resident of the home voluntarily consented to the search (see
People v Nance, 132 AD3d 1389, 1389, lv denied 26 NY3d 1091; People v
McCray, 96 AD3d 1480, 1481, lv denied 19 NY3d 1104). In contending
that the resident did not give consent, defendant improperly relies on
testimony of the resident of the home at the first trial, which ended
in a hung jury. “ ‘[T]estimony subsequently elicited at trial may not
be considered in connection with a challenge to a pretrial suppression
determination’ ” (People v McCurty [appeal No. 2], 60 AD3d 1406, 1407,
lv denied 12 NY3d 856; see People v Cooper, 59 AD3d 1052, 1054, lv
denied 12 NY3d 852).

     We reject defendant’s further contention that the evidence is
legally insufficient to establish that defendant was in possession of
the firearm, inasmuch as the evidence “established a particular set of
circumstances from which a jury could infer possession” (People v
Boyd, 145 AD3d 1481, 1482 [internal quotation marks omitted]). An
officer testified that, upon entering the home, he observed defendant
                                 -2-                           404
                                                         KA 15-00426

standing upstairs, holding a handgun. Defendant retreated to a
bedroom for a minute, and then came back out of the room without the
gun. When officers searched the room, they found a gun concealed
under clothing in a dresser drawer. Contrary to defendant’s further
contention, viewing the evidence in light of the elements of the 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 generally People v Bleakley, 69 NY2d 490, 495).

     Defendant contends that he was deprived of effective assistance
of counsel based on defense counsel’s failure to call a witness, i.e.,
the resident of the house, who testified at the first trial that ended
in a hung jury. That contention is based on matters outside the
record on appeal and must be raised by a motion pursuant to CPL 440.10
(see People v Streeter, 118 AD3d 1287, 1289, lv denied 23 NY3d 1068,
reconsideration denied 24 NY3d 1047; People v Kaminski, 109 AD3d 1186,
1186, lv denied 22 NY3d 1088).

     Defendant failed to preserve for our review his contention that
the sentence was a vindictive punishment for proceeding to trial (see
People v Pope, 141 AD3d 1111, 1112), and that contention is without
merit in any event (see People v Garner, 136 AD3d 1374, 1374-1375, lv
denied 27 NY3d 997). The sentence is not unduly harsh or severe.




Entered:   March 31, 2017                       Frances E. Cafarell
                                                Clerk of the Court
