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

1397
KA 12-00249
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LOUIS KELLY, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIDGET L. FIELD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered December 1, 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 following a
jury 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 support the conviction because the People
failed to present evidence that he constructively possessed the
handgun while he was a passenger in the minivan in which the handgun
was found. We reject that contention. Defendant admitted to a police
investigator that he possessed the handgun for at least two months
prior to the time that it was found, he was the only backseat
passenger in the minivan, and the handgun was found in plain view
protruding from a pocket on the back of the front passenger seat. We
conclude that the evidence, viewed in the light most favorable to the
People, is legally sufficient to support defendant’s conviction on a
theory of either actual or constructive possession (see generally
People v Danielson, 9 NY3d 342, 349).

     Viewing the evidence in light of the elements of the crime of
criminal possession of a weapon in the second degree as charged to the
jury (see id.), we reject defendant’s further contention that the
verdict is against the weight of the evidence with respect to that
crime (see generally People v Bleakley, 69 NY2d 490, 495). Even
assuming, arguendo, that an acquittal would not have been
unreasonable, we note that, where, as here, “witness credibility is of
paramount importance to the determination of guilt or innocence, [we]
                                 -2-                          1397
                                                         KA 12-00249

must give [g]reat deference . . . [to the jury’s] opportunity to view
the witnesses, hear the testimony and observe demeanor” (People v
Harris, 15 AD3d 966, 967, lv denied 4 NY3d 831 [internal quotation
marks omitted]; see Bleakley, 69 NY2d at 495). We decline to disturb
the jury’s resolution of the conflict between the testimony of the
police investigator and the testimony of defendant. The jury’s
resolution of that conflict was reasonable, particularly in view of
the fact that defendant’s testimony contradicted the statements he had
previously made to the police investigator at the time of his arrest.

     We agree with defendant that County Court failed to make the
proper two-part inquiry pursuant to People v Ventimiglia (52 NY2d 350)
with respect to testimony that defendant told the police that he did
not wish to reduce his statement to writing because, “based on his
experience, nothing good would come of that,” which was an apparent
reference to prior contact with the criminal justice system. The
court should have precluded that testimony, which “did not relate to a
relevant and material issue in the case” (People v Judd, 96 AD3d 784,
784, lv denied 19 NY3d 998). Nonetheless, we conclude that the error
in admitting the testimony is harmless, inasmuch as the evidence of
defendant’s guilt is overwhelming and there is no significant
probability that the error contributed to his conviction (see id.; see
generally People v Crimmins, 36 NY2d 230, 241-242).

     Defendant also contends that the court erred in its Sandoval
ruling by permitting the People to question him concerning a prior
felony conviction, when it was later discovered, prior to sentencing,
that defendant had been adjudicated a youthful offender on the
underlying charge (see generally People v Gray, 84 NY2d 709, 712). By
failing to object to the court’s ultimate Sandoval ruling, defendant
failed to preserve his contention for our review (see People v Smith,
90 AD3d 1565, 1566, lv denied 18 NY3d 998), and we decline to exercise
our power to review it as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered: December 31, 2015                      Frances E. Cafarell
                                                Clerk of the Court
