PEOPLE v. DALEY (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gia L. Morris, J.), rendered August 7, 2019, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, without a hearing, of the defendant's motion to controvert a search warrant and to suppress physical evidence seized in the execution thereof.

ORDERED that the judgment is affirmed.

In March 2017, police officers executed a search warrant to look for firearms at certain premises located in Queens, where the defendant resided.  In the unfinished ceiling of a locked basement laundry room, officers recovered a .45 caliber Sig Sauer semiautomatic pistol, which was later found to be operable.

The defendant was charged with two counts of criminal possession of a weapon in the second degree, in violation of Penal Law § 265.03(1)(b) and (3), as well as criminal possession of a weapon in the third degree, in violation of Penal Law § 265.02(1).  Following a jury trial, the defendant was convicted of criminal possession of a weapon in the third degree.  The defendant appeals.

In reviewing the legal sufficiency of evidence, this Court, viewing the evidence in the light most favorable to the People, must determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt (see People v Danielson, 9 NY3d 342, 349;  People v Williams, 84 NY2d 925, 926).  A person is guilty of criminal possession of a weapon in the third degree when they commit the crime of criminal possession of a weapon in the fourth degree and have previously been “convicted of any crime” (Penal Law § 265.02[1] ).  A person is guilty of criminal possession of a weapon in the fourth degree when “[h]e or she possesses any firearm” (Penal Law § 265.01[1] ).

To support a charge that a defendant was in constructive possession of a firearm, the People must show that the defendant exercised dominion or control over the firearm by a sufficient level of control over the area in which the firearm is found (see People v Holloway, 210 AD3d 1007, 1008;  People v. Branch, 186 AD3d 1705, 1706).  “Constructive possession may be established by direct evidence or by circumstantial evidence with inferences drawn from the facts presented in the case” (People v Williams, 170 AD3d 1046, 1047 [internal quotation marks omitted];  see People v Skyles, 266 AD2d 321, 322).  A sufficient level of control over the area in which the firearm is found establishes constructive possession (see People v Williams, 170 AD3d at 1048;  People v Skyles, 266 AD2d at 322).

Here, in the defendant's bedroom, the police officers found two pieces of mail addressed to the defendant, a bulletproof vest, and the key to the locked laundry room on a single key ring kept separate from other keys found in the room.  Based on the foregoing, the jury could reasonably infer that the defendant exercised dominion and control over the laundry room in which the firearm was found, and thus, that he constructively possessed it (see People v Moses, 177 AD3d 619, 620;  People v Williams, 170 AD3d at 1047–1048;  see also People v Carvey, 89 NY2d 707, 712).

Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5];  People v Moses, 177 AD3d at 620–621;  People v Skyles, 266 AD2d at 322).  While jurors could have reasonably concluded that other individuals residing in the home had access to the laundry room, mere access by others does not preclude a finding of constructive possession (see People v Moses, 177 AD3d at 621).  Moreover, possession, even if joint, is still possession (see People v Torres, 68 NY2d 677, 679;  People v Moses, 177 AD3d at 621).

The defendant's contention that the search warrant was overbroad is unpreserved for appellate review (see CPL 470.05[2] ), and we decline to reach that issue in the exercise of our interest of justice jurisdiction.  Additionally, the Supreme Court correctly denied the defendant's motion to controvert the search warrant and to suppress the evidence seized in the execution thereof.  Based on our review of the unredacted search warrant affidavit and a confidential informant's testimony, we find that the supporting affidavit established probable cause to search the target premises (see People v Taylor, 73 NY2d 684, 688).  Contrary to the defendant's contention, the Aguilar–Spinelli test (see Spinelli v United States, 393 US 410;  Aguilar v Texas, 378 U.S. 108) is inapplicable because the confidential informant appeared before the issuing magistrate, was sworn, and provided information supporting probable cause for the issuance of the search warrant (see People v Tordella, 37 AD3d 500, 500).

The confidential informant's statements to police and the issuing magistrate cannot be deemed Brady material (see Brady v Maryland, 373 U.S. 83) because the confidential informant was never called as a witness to testify at the defendant's trial (see People v Baxley, 84 NY2d 208, 213).  Contrary to the defendant's contentions, he failed to demonstrate any legitimate factual basis to warrant the disclosure at trial of the confidential informant's identity (see People v Stanley, 280 AD2d 689, 689).  The confidential informant's only role was to advise the police that he observed firearms at the location (see People v Goggins, 34 NY2d 163, 170).

Additionally, the defendant's allegation that the confidential informant had a motive to plant evidence against him was insufficient to demonstrate that the proposed testimony of the confidential informant would tend to be exculpatory or would create a reasonable doubt as to the reliability of the prosecution's case either through direct examination or impeachment under the circumstances of this case (see People v Rivera, 98 AD3d 529, 530).  Moreover, the defendant was able to challenge the confidential informant's credibility by eliciting testimony that the confidential informant lived at the premises and was paid by Crime Stoppers for his report to the police, and that individuals residing at the premises had made numerous complaints against the defendant.  In any event, the defendant suspected the identity of the confidential informant but did not subpoena him to testify (see People v Cole, 224 AD2d 540, 541).

The challenged comments of the prosecutor during summation were fair comment on the evidence at trial (see People v Johnson, 248 AD3d 1279, 1280).

The defendant's contention that the Supreme Court erred in failing to respond to a jury note requesting clarification of the charge concerning criminal possession of a weapon in the third degree is without merit.  There was no undue delay by the court in responding to the note, and the fact that the jury reached a verdict before it was answered was not the result of any error or perceived pressure on the court's part (see People v Agosto, 73 NY2d 963, 966–967;  People v Albanese, 45 AD3d 691, 692).  The fact that a verdict was reached implied that the jury resolved the issue on its own (see People v Albanese, 45 AD3d at 692).  Additionally, the defendant was not seriously prejudiced by the failure to respond to the note (see People v Agosto, 73 NY2d at 967).  The jury's verdict acquitting the defendant of criminal possession of a weapon in violation of Penal Law § 265.03(3), despite the firearm's operability, while apparently illogical, is viewed as a mistake, compromise, or the exercise of mercy by the jury, none of which undermine a verdict as a matter of law (see People v Muhammad, 17 NY3d 532, 540).

The defendant's remaining contention is without merit.

GENOVESI, J.P., CHAMBERS, CHRISTOPHER and HOM, JJ., concur.