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

197
KA 04-03053
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIE J. DELANCY, DEFENDANT-APPELLANT.


MICHAEL P. STACY, ROCHESTER, FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered October 4, 2004. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the third 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 third degree
(Penal Law § 265.02 [1]), defendant contends that the evidence of his
possession of the weapon is legally insufficient to support the
conviction. We reject that contention (see generally People v
Bleakley, 69 NY2d 490, 495). Viewing the evidence in the light most
favorable to the People (see People v Contes, 60 NY2d 620, 621), we
conclude that the evidence is legally sufficient to establish that
defendant constructively possessed the firearm in question by
exercising dominion and control over the area from which the firearm
was seized (see § 10.00 [8]; People v Manini, 79 NY2d 561, 572-573).
Defendant further contends that the verdict is repugnant inasmuch as
he was acquitted of criminal possession of a controlled substance in
the seventh degree (§ 220.03). We reject that contention as well (see
generally People v Tucker, 55 NY2d 1, 4, rearg denied 55 NY2d 1039).
Supreme Court properly charged the jury that, in order to find
defendant guilty of criminal possession of a weapon in the third
degree, it must find that defendant “knowingly possesse[d] any
firearm,” while with respect to criminal possession of a controlled
substance in the seventh degree the jury had to find that defendant
“knowingly and unlawfully possesse[d] a controlled substance,”
including heroin. Here, the jury was entitled to find that defendant
exercised dominion and control over the firearm, which was found near
                                 -2-                           197
                                                         KA 04-03053

his person, but not over the heroin, which was located further away
from his person.




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
