SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

24 

KA 12-00040 

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

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

SHAUN BLACK, 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 November 16, 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: 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 NY2d

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 NY2d 56, 62, rearg denied 97 NY2d 678; People v Williams, 84 NY2d

925, 926), is legally sufficient to establish that defendant

constructively possessed the subject weapon (see generally People v

Bleakley, 69 NY2d 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
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KA 12-00040 

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

NY2d 396, 401). Finally, the sentence is not unduly harsh or severe. 

Entered: February 14, 2014 Frances E. Cafarell

Clerk of the Court