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

1073
KA 11-00583
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

DEQWAUN L. NEWKIRK, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered December 21, 2010. 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 upon a
nonjury verdict 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 that he possessed the loaded
firearm found by the police in the basement of a suspected drug house
in which he was located when the police executed a search warrant (see
generally People v Bleakley, 69 NY2d 490, 495). We reject that
contention. The evidence at trial established that defendant was the
only person in the house when the police entered, and an officer
testified that, immediately before the police gained entry, he heard
the sounds of someone inside running down and then up the basement
stairs. When questioned by the police, defendant admitted that he had
purchased the firearm in question, a photograph of which was on the
screen saver of defendant’s cell phone, and it was later determined
that defendant’s DNA was on the firearm. That evidence, when viewed
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), is legally sufficient to establish that defendant
possessed the firearm (see § 10.00 [8]; People v Manini, 79 NY2d 561,
573-574; People v Sierra, 45 NY2d 56, 59-60).



Entered:    November 16, 2012                      Frances E. Cafarell
                                                   Clerk of the Court
