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

1230
KA 12-02179
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EMMANUEL D. RODRIGUEZ, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C.
RUSSO-MCLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered April 30, 2012. The judgment convicted
defendant, upon a nonjury 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: On appeal from a judgment convicting him following a
nonjury trial of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that the evidence is
legally insufficient to establish his guilt and that the verdict is
against the weight of the evidence. More specifically, defendant
contends that, although he admittedly possessed a loaded .38 caliber
handgun for which he did not have a permit, the People failed to
disprove his defense of temporary and innocent possession of the
weapon. We reject defendant’s contentions and affirm.

     Defendant, a six-time felon and admitted gang member, testified
at trial that, on the night in question, he went to a bar in Buffalo
with a friend named A.J., who subsequently became intoxicated and
argumentative. After A.J. was removed from the bar by a bouncer for
misbehavior, defendant heard A.J. say something about getting a gun.
A.J. then entered a vehicle with another person whom defendant did not
know. Defendant further testified that, while the vehicle was stopped
at the intersection outside the bar, he himself approached the vehicle
on foot and entered the backseat, where he saw on the floor a black
sock that contained a loaded handgun. Defendant explained that he
took possession of the weapon because he was concerned that A.J. might
use it unlawfully against someone. When a uniformed police officer
approached the vehicle moments later, defendant said “I have something
on me but it’s not mine.” Defendant thus contends that his possession
                                 -2-                          1230
                                                         KA 12-02179

of the weapon was temporary and innocent.

     Defendant’s testimony, however, was contradicted in relevant part
by that of the bouncer who removed A.J. from the bar and observed
defendant approach the vehicle. The bouncer, an off-duty police
officer, testified that defendant was carrying what appeared to be a
black pouch as he approached the vehicle, and that defendant was
stopped and frisked by the uniformed officer before he was able to
enter the vehicle. That testimony was corroborated by the uniformed
officer, who testified that defendant did not enter or reach inside
the vehicle. According to the officer, defendant had a black pouch in
his pocket as defendant approached the vehicle. That black pouch
contained the weapon that defendant was charged with possessing.

     “A person may be found to have had temporary and lawful
possession of a weapon if, for example, ‘he found the weapon shortly
before his possession of it was discovered and he intended to turn it
over to the authorities’ ” (People v DeJesus, 118 AD3d 1340, 1341, lv
denied 23 NY3d 1061, quoting People v Almodovar, 62 NY2d 126, 130).
Here, viewing the evidence in the light most favorable to the
prosecution (see People v Contes, 60 NY2d 620, 621), we conclude that
the testimony of the prosecution witnesses as outlined above is
legally sufficient to establish that defendant did not find the weapon
in the vehicle shortly before his possession of it was discovered, and
that his possession of the weapon was therefore not temporary and
innocent (see People v Crawford, 96 AD3d 964, 964-965, lv denied 20
NY3d 931).

     Moreover, viewing the evidence in light of the elements of the
crime 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
(see generally People v Bleakley, 69 NY2d 490, 495). Even assuming,
arguendo, that a different verdict would not have been unreasonable,
we conclude that it cannot be said that County Court failed to give
the evidence the weight it should be accorded (see People v Kalen, 68
AD3d 1666, 1667, lv denied 14 NY3d 842; see generally Bleakley, 69
NY2d at 495). Generally, “[w]e accord great deference to the
resolution of credibility issues by the trier of fact ‘because those
who see and hear the witnesses can assess their credibility and
reliability in a manner that is far superior to that of reviewing
judges who must rely on the printed record’ ” (People v Ange, 37 AD3d
1143, 1144, lv denied 9 NY3d 839, quoting People v Lane, 7 NY3d 888,
890), and we perceive no basis in the record for disturbing the
court’s credibility determinations in this case.




Entered:   November 21, 2014                    Frances E. Cafarell
                                                Clerk of the Court
