THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. WILLIE DELANCY DEFENDANT APPELLANT

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. WILLIE J. DELANCY, DEFENDANT-APPELLANT.

KA 04-03053

Decided: February 18, 2011

PRESENT:  SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. MICHAEL P. STACY, ROCHESTER, FOR DEFENDANT-APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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 N.Y.2d 490, 495).   Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 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 N.Y.2d 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 N.Y.2d 1, 4, rearg. denied 55 N.Y.2d 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 his person, but not over the heroin, which was located further away from his person.

Patricia L. Morgan

Clerk of the Court