THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. SHAUN BLACK 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. SHAUN BLACK, DEFENDANT–APPELLANT.

KA 12–00040

Decided: February 14, 2014

PRESENT:  SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ. THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon a jury verdict, of 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 that he constructively possessed the weapon.   Where, as here, “there is no evidence that defendant actually possessed the [weapon], the People must establish that defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband [was] found or over the person from whom the contraband [was] seized” (People v. Pichardo, 34 AD3d 1223, 1224, lv denied 8 NY3d 926 [internal quotation marks omitted];  see People v. Manini, 79 N.Y.2d 561, 573;  see also § 10.00[8] ).   Here, we conclude that the evidence, viewed in the light most favorable to the People (see People v. Hines, 97 N.Y.2d 56, 62, rearg. denied 97 N.Y.2d 678;  People v. Williams, 84 N.Y.2d 925, 926), is legally sufficient to establish that defendant constructively possessed the subject weapon (see generally People v. Bleakley, 69 N.Y.2d 490, 495).

We reject defendant's further contention that he was deprived of a fair trial by prosecutorial misconduct based on two comments made by the prosecutor on summation.   When defendant objected to the first comment, Supreme Court gave a curative instruction and then overruled the objection.   Defendant did not thereafter request a further curative instruction or move for a mistrial.   Under those circumstances, defendant's contention with respect to the prosecutor's first comment is properly before us only insofar as his objection was overruled because “ ‘the curative instruction[ ] [would] be deemed to have corrected the error to the defendant's satisfaction’ “ (People v. Lane, 106 AD3d 1478, 1480–1481, lv denied 21 NY3d 1043).   Defendant did not object to the second comment, however, and thus that part of his contention is unpreserved for our review (see People v. Young, 100 AD3d 1427, 1428, lv denied 20 NY3d 1105;  see also CPL 470.05[2] ).   In any event, we conclude that reversal is not required based upon those two instances of alleged misconduct (see People v. Sweeney, 15 AD3d 917, 917, lv denied 4 NY3d 891;  see generally People v. Galloway, 54 N.Y.2d 396, 401).   Finally, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court