State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 20, 2014 104704 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JAY RODWELL,

Appellant.

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Calendar Date: October 7, 2014

Before: Lahtinen, J.P., Stein, McCarthy, Rose and Clark, JJ.

__________

James P. Milstein, Public Defender, Albany (Theresa M.

Suozzi of counsel), for appellant. 

P. David Soares, District Attorney, Albany (Vincent Stark

of counsel), for respondent.

__________

Stein, J.

Appeal from a judgment of the Supreme Court (Lamont, J.),

rendered March 25, 2011 in Albany County, upon a verdict

convicting defendant of the crime of criminal possession of a

weapon in the fourth degree.

On October 16, 2009, police officers were dispatched to the

300 block of First Street in the City of Albany in response to a

report of shots fired. A resident of the neighborhood informed

the officers that he had observed individuals that he believed

were involved in the shooting enter a two-family house located at

330 First Street. Two officers were assigned to the back of the

house while two other officers knocked on the front door. One of

the officers located in the back of the house was looking in the
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rear window when he observed defendant – who he knew from

previous interactions – and another individual go into the

basement and return a brief time later. A subsequent search of

the basement revealed a 9 millimeter pistol, a box of 9

millimeter ammunition and a .22 caliber rifle hidden in a sump

well. Defendant was thereafter charged with criminal possession

of a weapon in the second degree regarding the pistol and

criminal possession of a weapon in the fourth degree regarding

the rifle. Following a jury trial, defendant was acquitted of

criminal possession of a weapon in the second degree, but was

found guilty of criminal possession of a weapon in the fourth

degree, a misdemeanor (see Penal Law § 265.01 [1]). Supreme

Court thereafter sentenced defendant to six months in jail. 

Defendant now appeals and we affirm. 

We reject defendant's contention that the verdict is not

based upon legally sufficient evidence or that it is not in

accord with the weight of the evidence. A person is guilty of

criminal possession of a weapon in the fourth degree when such

person "possesses any firearm" (Penal Law § 265.01 [1]). As

relevant here, a firearm is defined as "any weapon made from a

shotgun or rifle whether by alteration, modification, or

otherwise if such weapon as altered, modified, or otherwise has

an overall length of less than [26] inches" (Penal Law § 265.00

[3] [d]). It is undisputed that the subject rifle had been

altered by the removal of the rifle stock, resulting in the

weapon measuring 241⁄2 inches in length.

As to possession, "'[w]here, as here, the People proceed

upon the theory of constructive possession, they bear the burden

of establishing that defendant exercised dominion and control

over the contraband or the area where the contraband was found'"

(People v Perry, 116 AD3d 1253, 1254 [2014], quoting People v

Dawson, 110 AD3d 1350, 1352 [2013], lv denied 23 NY3d 1035

[2014]; see People v Stewart, 95 AD3d 1363, 1364 [2012], lv

denied 19 NY3d 1001 [2012]). Such possession "may be established

through either direct or circumstantial evidence, and may be

found even though others have access to the contraband or the

area where it is located" (People v Perry, 116 AD3d at 1254; see

People v Pinkney, 90 AD3d 1313, 1314-1315 [2011]). 
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Here, the trial evidence established that defendant was

seen entering the basement moments before the rifle was

discovered there. Moreover, the manager of a sporting goods

store testified that the serial number of the rifle matched that

of a rifle that he had sold to defendant a month prior to this

incident. Despite the fact that others had access to the

basement, when we view the evidence presented in the light most

favorable to the People, we conclude that it was legally

sufficient to establish that defendant constructively possessed

the rifle (see People v Stewart, 95 AD3d at 1364; People v

Pinkney, 90 AD3d at 1315). Further, even if a different verdict

would not have been unreasonable, viewing the evidence in a

neutral light and according appropriate deference to the jury's

credibility determinations, we do not find the verdict to be

against the weight of the evidence (see People v Bleakley, 69

NY2d 490, 495 [1987]; People v Perry, 116 AD3d at 1255; People v

Pinkney, 90 AD3d at 1315).

We also reject defendant's contention that Supreme Court

should have suppressed oral and written statements he made to

police. "Whether a statement is voluntary is a factual question

to be determined from the totality of the circumstances" (People

v Heesh, 94 AD3d 1159, 1160 [2012], lv denied 19 NY3d 961 [2012]

[citations omitted]; see People v Mattis, 108 AD3d 872, 874

[2013], lvs denied 22 NY3d 957 [2013]). Here, the record

establishes that defendant was read his Miranda rights before

making any statements, and he acknowledged that he understood his

rights, made no request to speak to an attorney and agreed to

speak to the police investigators. His statements were later

memorialized in a written document, which defendant read and

signed, again acknowledging his understanding of his rights and

that his statements were voluntary. Thus, Supreme Court properly

determined that defendant's statements were voluntarily made (see

People v Whitted, 117 AD3d 1179, 1181 [2014], lv denied 23 NY3d

1026 [2014]; People v Mattis, 108 AD3d at 874; People v Tompkins,

107 AD3d 1037, 1038 [2013], lv denied 22 NY3d 1044 [2013]).

Defendant's remaining contentions do not require extended

discussion. Defendant's argument that the verdict is repugnant

is unpreserved for our review in light of his failure to object

prior to the jury being discharged (see People v Satloff, 56 NY2d
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745, 746 [1982]; People v Hawkins, 110 AD3d 1242, 1244 [2013], lv

denied 22 NY3d 1041 [2013]; People v Coville, 73 AD3d 1232, 1232-

1233 [2010]; see also People v Muhammad, 17 NY3d 532, 541 n 5

[2011]). Were we to review defendant's argument, we would find

it to be lacking in merit. As to the sentence imposed, we

initially reject defendant's assertion that Supreme Court was

required to afford him youthful offender status pursuant to CPL

720.20 (1) (b), as the record indicates that he does not meet the

statutory requirement of having been convicted in a local

criminal court (see CPL 10.10 [3]; People v Robert Z., 134 Misc

2d 555, 557 [1986]). Moreover, given defendant's criminal

history, we cannot say that Supreme Court abused its discretion

in denying him youthful offender status (see CPL 720.20 [1];

People v Fernandez, 106 AD3d 1281, 1296 [2013]; People v Carter,

60 AD3d 1103, 1107 [2009], lv denied 12 NY3d 924 [2009]). 

Finally, inasmuch as defendant has completed his six-month

sentence, his harsh and excessive claim is moot (see People v

Olmstead, 111 AD3d 1065, 1065 [2013]; People v Fusco, 91 AD3d

984, 985 [2012]; People v Nieves, 89 AD3d 1285, 1287 [2011]).

Lahtinen, J.P., McCarthy, Rose and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court