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

255
KA 10-01958
PRESENT: SMITH, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DONNELL STEPNEY, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered June 9, 2010. The judgment convicted defendant,
upon a jury verdict, of criminal possession of a weapon in the second
degree and assault 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
jury trial of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]) and assault in the second degree (§ 120.05
[3]), defendant contends that County Court erred in failing to excuse
for cause a prospective juror who stated that he had a friend who was
a former police officer and that he would probably be more likely than
not to credit the testimony of law enforcement officials. By failing
to raise that challenge in the trial court, however, defendant failed
to preserve it for our review (see CPL 470.05 [2]; People v Chatman,
281 AD2d 964, 964-965, lv denied 96 NY2d 899). We reject defendant’s
further contention that the court’s failure to discharge the
prospective juror sua sponte constitutes a mode of proceedings error
that does not require preservation (see generally People v Rosen, 96
NY2d 329, 335, cert denied 534 US 899). In any event, even if
defendant had challenged the prospective juror on that ground and his
challenge had merit, it nevertheless would not be properly before us
because he failed to exhaust his peremptory challenges prior to the
completion of jury selection (see CPL 270.20 [2]; People v Arguinzoni,
48 AD3d 1239, 1241, lv denied 10 NY3d 859; cf. People v Lynch, 95 NY2d
243, 248).

     To the extent that defendant contends that defense counsel was
ineffective for failing to challenge the prospective juror, we note
that the transcript of voir dire shows that one or more unidentified
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                                                         KA 10-01958

prospective jurors on the same panel as that prospective juror made
comments that could be construed as being highly favorable to the
defense, and it is possible that the prospective juror in question
made some of those comments. We thus conclude that defendant “failed
to show the absence of a strategic explanation for defense counsel’s”
failure to challenge that prospective juror (People v Mendez, 77 AD3d
1312, 1312-1313, lv denied 16 NY3d 799; see People v Benevento, 91
NY2d 708, 712-713). “[M]ere disagreement with trial strategy is
insufficient to establish that defense counsel was ineffective”
(People v Henry, 74 AD3d 1860, 1862, lv denied 15 NY3d 852).

     By making only a general motion for a trial order of dismissal,
defendant failed to preserve for our review his contention that the
evidence is legally insufficient to establish his commission of either
crime charged (see People v Gray, 86 NY2d 10, 19; People v Washington,
89 AD3d 1516, 1517). “However, we necessarily review the evidence
adduced as to each of the elements of the crimes in the context of our
review of defendant’s challenge regarding the weight of the evidence”
(People v Caston, 60 AD3d 1147, 1148-1149; see People v Danielson, 9
NY3d 342, 349-350; People v Francis, 83 AD3d 1119, 1120, lv denied 17
NY3d 806; People v Loomis, 56 AD3d 1046, 1046-1047). We nevertheless
conclude that, viewing the evidence in light of the elements of the
crimes as charged to the jury, the People proved beyond a reasonable
doubt all elements of the crimes charged (see Danielson, 9 NY3d at
349; see generally People v Bleakley, 69 NY2d 490, 495).

     With respect to the weapon conviction, the People proved that
defendant constructively possessed the loaded firearm found in the
vehicle in which he was a passenger. The firearm was found by the
police on the floorboard in the vehicle directly beneath the location
where defendant was seated, and the firearm was adjacent to a blank
gun that defendant admittedly owned. Although defendant’s
fingerprints were not found on the loaded firearm, they were also not
found on the blank gun that he undisputedly possessed. The fact that
the codefendant’s fingerprint was found on the loaded gun does not
preclude the possibility that defendant possessed it as well, inasmuch
as “more than one person may possess an object simultaneously” (People
v Myers, 265 AD2d 598, 600).

     With respect to the assault conviction, we conclude that the
People proved beyond a reasonable doubt that defendant intended to
prevent the arresting officer from performing a lawful duty when the
officer injured his knee (see Penal Law § 120.05 [3]). Although
defendant contends that the arresting officer was not engaged in a
lawful duty when he attempted to frisk him, the suppression court
determined following a hearing that the officer acted lawfully during
every step of his encounter with defendant, and defendant does not
challenge the suppression ruling on appeal. Because the evidence at
trial was consistent with that presented at the suppression hearing,
we perceive no basis for overturning the assault conviction on the
grounds advanced by defendant.

     Defendant failed to preserve for our review his contention that
the court erred in admitting in evidence a postarrest photograph of
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                                                         KA 10-01958

him depicting him in handcuffs and shirtless. In any event, the
photograph was relevant and admissible to show defendant’s condition
at the time of his arrest (see People v Logan, 25 NY2d 184, 195, cert
denied 396 US 1020, rearg dismissed 27 NY2d 733, 737; People v Lakram,
207 AD2d 360, 361, lv denied 84 NY2d 1034, 86 NY2d 737). We have
reviewed defendant’s remaining contentions and conclude that they are
without merit.




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
