SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

345 

KA 11-01635 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

TILLMAN WARD, DEFENDANT-APPELLANT. 

 

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. 

 

Appeal from a judgment of the Supreme Court, Erie County (Russell

P. Buscaglia, A.J.), rendered July 20, 2011. The judgment convicted

defendant, upon a jury verdict, of criminal possession of a weapon in

the second degree. 

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 second degree (Penal

Law § 265.03 [3]), defendant contends that Supreme Court abused its

discretion in consolidating two indictments for trial (see People v

Rios, 72 AD3d 1489, 1490-1491, lv denied 15 NY3d 777). We reject that

contention. Although the indictments are based upon different

criminal transactions, the offenses charged are “the same or similar

in law” (CPL 200.20 [2] [c]), and defendant failed to establish that

there was “[s]ubstantially more proof on one or more [of the] joinable

offenses than on others and [that] there [was] a substantial

likelihood that the jury would be unable to consider separately the

proof as it relat[ed] to each offense” (CPL 200.20 [3] [a]; see

generally People v Lane, 56 NY2d 1, 7-8). Indeed, the fact that the

jury convicted defendant on the charge from one incident but was

unable to reach a verdict with respect to the charge from the other

incident “reflects that the jury was able to consider each count as a

separate and distinct incident” (People v Reed, 212 AD2d 962, 962, lv

denied 86 NY2d 739).

 We also reject defendant’s contention that the evidence is

legally insufficient with respect to the element of possession. 

“Defendant’s possession of the weapon may be established through the

doctrine of constructive possession, which is based on the exercise of

dominion and control over the area in which an item is found” (People
-2- 345 

KA 11-01635 

v Carter, 60 AD3d 1103, 1106, lv denied 12 NY3d 924). Here, the

police recovered the loaded handgun from the floor under the driver’s

seat of a vehicle, and defendant admitted to the police that he drove

the automobile to the location where it was searched. The statutory

presumption of possession set forth in Penal Law § 265.15 (3) provides

that “[t]he presence in an automobile, other than a stolen one or a

public omnibus, of any firearm . . . [or] defaced firearm . . . is

presumptive evidence of its possession by all persons occupying such

automobile at the time such weapon . . . is found.” Furthermore,

defendant admitted to the police that he had possessed the weapon and

had placed it under the driver’s seat. That admission was confirmed

by “DNA samples taken from the handgun [that] were consistent with

defendant’s DNA, from which an inference could be made that defendant

had physically possessed the gun at some point in time” (People v

Robinson, 72 AD3d 1277, 1278, lv denied 15 NY3d 809; see People v

Long, 100 AD3d 1343, 1344). We thus conclude that the evidence is

legally sufficient to establish the element of possession (see

generally People v Bleakley, 69 NY2d 490, 495). Contrary to

defendant’s further contention, viewing the evidence in light of the

elements of the crime as charged to the jury (see People v Danielson,

9 NY3d 342, 349), we conclude that the verdict is not against the

weight of the evidence (see generally Bleakley, 69 NY2d at 495). Even

assuming, arguendo, that a different finding would not have been

unreasonable, we conclude that the jury did not fail to give the

evidence the weight it should be accorded (see id.).

We reject defendant’s further contention that the court erred in

denying his request to instruct the jury on the defense of temporary

innocent possession of the handgun inasmuch as “there was no

reasonable view of the evidence upon which the jury could have found

that the defendant’s possession was innocent” (People v Johnson, 30

AD3d 439, 439, lv denied 7 NY3d 813). Such an instruction is

warranted where there is “proof in the record showing a legal excuse

for [defendant] having the weapon in his possession as well as facts

tending to establish that, once possession has been obtained, the

weapon had not been used in a dangerous manner” (People v Williams, 50

NY2d 1043, 1045). Here, however, there was no such proof inasmuch as

the People established that defendant took the weapon from another

person and hid it under the driver’s seat of the car he was driving,

“and [that] he made no effort to turn the weapon over to the police

after secreting it” (People v Hanley, 227 AD2d 144, 145). That

evidence “is ‘utterly at odds with . . . [a] claim of innocent

possession’ ” (People v Snyder, 73 NY2d 900, 902, quoting Williams, 50

NY2d at 1045). 

Finally, the sentence is not unduly harsh or severe.

Entered: March 22, 2013 Frances E. Cafarell

Clerk of the Court