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

345
KA 11-01635
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TILLMAN WARD, 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 (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered July 20, 2011. 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: 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]), defendant contends that Supreme Court abused its
discretion in consolidating two indictments for trial (see People v
Rios, 72 AD3d 1489, 1490-1491, lv denied 15 NY3d 777). We reject that
contention. Although the indictments are based upon different
criminal transactions, the offenses charged are “the same or similar
in law” (CPL 200.20 [2] [c]), and defendant failed to establish that
there was “[s]ubstantially more proof on one or more [of the] joinable
offenses than on others and [that] there [was] a substantial
likelihood that the jury would be unable to consider separately the
proof as it relat[ed] to each offense” (CPL 200.20 [3] [a]; see
generally People v Lane, 56 NY2d 1, 7-8). Indeed, the fact that the
jury convicted defendant on the charge from one incident but was
unable to reach a verdict with respect to the charge from the other
incident “reflects that the jury was able to consider each count as a
separate and distinct incident” (People v Reed, 212 AD2d 962, 962, lv
denied 86 NY2d 739).

     We also reject defendant’s contention that the evidence is
legally insufficient with respect to the element of possession.
“Defendant’s possession of the weapon may be established through the
doctrine of constructive possession, which is based on the exercise of
dominion and control over the area in which an item is found” (People
                                 -2-                             345
                                                           KA 11-01635

v Carter, 60 AD3d 1103, 1106, lv denied 12 NY3d 924). Here, the
police recovered the loaded handgun from the floor under the driver’s
seat of a vehicle, and defendant admitted to the police that he drove
the automobile to the location where it was searched. The statutory
presumption of possession set forth in Penal Law § 265.15 (3) provides
that “[t]he presence in an automobile, other than a stolen one or a
public omnibus, of any firearm . . . [or] defaced firearm . . . is
presumptive evidence of its possession by all persons occupying such
automobile at the time such weapon . . . is found.” Furthermore,
defendant admitted to the police that he had possessed the weapon and
had placed it under the driver’s seat. That admission was confirmed
by “DNA samples taken from the handgun [that] were consistent with
defendant’s DNA, from which an inference could be made that defendant
had physically possessed the gun at some point in time” (People v
Robinson, 72 AD3d 1277, 1278, lv denied 15 NY3d 809; see People v
Long, 100 AD3d 1343, 1344). We thus conclude that the evidence is
legally sufficient to establish the element of possession (see
generally People v Bleakley, 69 NY2d 490, 495). 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 Bleakley, 69 NY2d at 495). Even
assuming, arguendo, that a different finding would not have been
unreasonable, we conclude that the jury did not fail to give the
evidence the weight it should be accorded (see id.).

     We reject defendant’s further contention that the court erred in
denying his request to instruct the jury on the defense of temporary
innocent possession of the handgun inasmuch as “there was no
reasonable view of the evidence upon which the jury could have found
that the defendant’s possession was innocent” (People v Johnson, 30
AD3d 439, 439, lv denied 7 NY3d 813). Such an instruction is
warranted where there is “proof in the record showing a legal excuse
for [defendant] having the weapon in his possession as well as facts
tending to establish that, once possession has been obtained, the
weapon had not been used in a dangerous manner” (People v Williams, 50
NY2d 1043, 1045). Here, however, there was no such proof inasmuch as
the People established that defendant took the weapon from another
person and hid it under the driver’s seat of the car he was driving,
“and [that] he made no effort to turn the weapon over to the police
after secreting it” (People v Hanley, 227 AD2d 144, 145). That
evidence “is ‘utterly at odds with . . . [a] claim of innocent
possession’ ” (People v Snyder, 73 NY2d 900, 902, quoting Williams, 50
NY2d at 1045).

    Finally, the sentence is not unduly harsh or severe.




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
