PEOPLE v. MCPHERSON (2022)

Judgment of conviction (Tara A. Collins, J.), rendered May 7, 2019, affirmed.

In view of defendant's knowing waiver of his right to prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement (see People v Dumay, 23 NY3d 518 [2014]). So viewed, the accusatory instrument was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of criminal possession of a weapon in the fourth degree (see Penal Law § 265.01[1]). The instrument recited that defendant was standing on the second floor landing of a specified apartment building when one shot was fired from a firearm; that defendant was seen fleeing into his second floor apartment; that a .38 caliber bullet was recovered from the wall opposite defendant's apartment; that in executing a search warrant for the apartment issued that same day, a .38 caliber revolver was recovered from inside the back of a large portable speaker inside the apartment; and that the revolver was loaded with two (2) live rounds. Contrary to defendant's present contentions, these allegations and the reasonable inferences to be drawn from them were sufficient for pleading purposes to establish that defendant was in constructive possession of the firearm, i.e., that he “exercised dominion and control” over it (see Penal Law 10.00[8]; see People v Mancini, 79 NY2d 561, 573 [1992]). Furthermore, a witness's statement that he or she heard gunshots provided circumstantial evidence that the .38 caliber gun - loaded with two live rounds and matching the caliber of the bullet recovered from the wall opposite defendant's apartment - was operable (see People v Samba, 97 AD3d 411, 414 [2012], lv denied 20 NY3d 1065 [2013]).

Alternatively, even were we to accept defendant's contention that the fourth degree gun possession charge was defective, the only relief defendant requests is dismissal of the accusatory instrument rather than vacatur of the plea, and he expressly requests that this Court affirm the conviction if it does not grant a dismissal. In view of the serious nature of the other charges contained in the felony complaint, a penologicial purpose would be served by remanding the matter for further proceedings. We therefore affirm the judgment of conviction, as the ultimate outcome of this appeal would, in any event, be an affirmance (see People v Teron, 139 AD3d 450 [2016]; People v Torrence, 70 Misc 3d 136[A], 2021 NY Slip Op 50045[U][App Term, 1st Dept 2021], lv denied 37 NY3d 961 [2021]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur