PEOPLE v. MARINACCIO (2005)

 Defendant appeals from a judgment convicting him after a nonjury trial of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1] ).   Contrary to the contentions of defendant, the evidence is legally sufficient to establish that he had dominion and control over the area where the weapon was found (see People v. Torres, 68 N.Y.2d 677, 679, 505 N.Y.S.2d 595, 496 N.E.2d 684;  People v. Pleczyj, 254 A.D.2d 753, 678 N.Y.S.2d 555, lv. denied 92 N.Y.2d 1052, 685 N.Y.S.2d 430, 708 N.E.2d 187;  People v. Shambo, 209 A.D.2d 1011, 619 N.Y.S.2d 450, lv. denied 84 N.Y.2d 1038, 623 N.Y.S.2d 194, 647 N.E.2d 466, 85 N.Y.2d 980, 629 N.Y.S.2d 740, 653 N.E.2d 636), and the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We agree with defendant that Supreme Court erred in allowing his wife to testify that he showed her the weapon on a prior occasion.  “One spouse may not, without consent, disclose a confidential communication made by the other during marriage (CPLR 4502[b];  CPL 60.10)” (People v. Fediuk, 66 N.Y.2d 881, 883, 498 N.Y.S.2d 763, 489 N.E.2d 732).  “[A]cts as well as words may be the subject of communications” (People v. Melski, 10 N.Y.2d 78, 80, 217 N.Y.S.2d 65, 176 N.E.2d 81;  see People v. Wilson, 64 N.Y.2d 634, 636, 485 N.Y.S.2d 40, 474 N.E.2d 248;  People v. Beard, 197 A.D.2d 582, 583, 602 N.Y.S.2d 430, lv. denied 82 N.Y.2d 891, 610 N.Y.S.2d 158, 632 N.E.2d 468;  People v. Yakoumakis, 156 A.D.2d 499, 548 N.Y.S.2d 576, lv. denied 75 N.Y.2d 926, 555 N.Y.S.2d 45, 554 N.E.2d 82).   Here, the People did not rebut the presumption that the act of defendant in showing the weapon to his wife was confidential (see generally Fediuk, 66 N.Y.2d at 883, 498 N.Y.S.2d 763, 489 N.E.2d 732).   The error, however, is harmless.  “The proof of defendant's guilt was overwhelming and there is no significant probability that the [court] would have acquitted defendant had it not been for the error which occurred” (People v. Williams, 178 A.D.2d 958, 959, 579 N.Y.S.2d 256, lv. denied 79 N.Y.2d 954, 583 N.Y.S.2d 208, 592 N.E.2d 816;  see People v. Mastrangelo, 203 A.D.2d 942, 942-943, 612 N.Y.S.2d 1020, lv. denied 83 N.Y.2d 912, 614 N.Y.S.2d 395, 637 N.E.2d 286).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: