THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. GEORGE CAMPBELL DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him following a nonjury trial of, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ).   We reject defendant's contention that the evidence is legally insufficient to establish the element of possession with respect to that crime (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   The loaded handgun was discovered inside a sock on the floor under the driver's seat of the vehicle defendant was driving, and DNA taken from the sock was consistent with defendant's DNA. That evidence, along with the statutory presumption of possession set forth in Penal Law § 265.15(3), is legally sufficient to establish defendant's constructive possession of the handgun (see People v. Ward, 104 AD3d 1323, 1324, lv denied 21 NY3d 1011).   Defendant failed to preserve for our review his further challenge to the legal sufficiency of the evidence with respect to the operability of the weapon (see People v. Gray, 86 N.Y.2d 10, 19).   Furthermore, inasmuch as that challenge to the legal sufficiency of the evidence lacks merit (see People v. Cavines, 70 N.Y.2d 882, 883;  see also People v. Brown, 107 AD3d 1477, 1478, lv denied 21 NY3d 1040), defense counsel's failure to preserve it for our review does not constitute ineffective assistance of counsel (see People v. Cole, 111 AD3d 1301, 1302).   Finally, viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the second degree in this nonjury trial (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence with respect to that crime (see generally Bleakley, 69 N.Y.2d at 495).

Frances E. Cafarell

Clerk of the Court