SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
758
KA 13-01913
PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RICARDO CARRASQUILLO, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered July 22, 2013. 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 weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that County Court erred
in refusing to give a missing witness charge. We reject that
contention inasmuch as defendant did not establish that the uncalled
witness was “knowledgeable about a material issue pending in the case”
(People v Gonzalez, 68 NY2d 424, 427; see generally People v Keen, 94
NY2d 533, 539).
Defendant’s contention that he was denied a fair trial by
prosecutorial misconduct upon summation is unpreserved for our review
inasmuch as defendant did not object to any of the alleged instances
of misconduct (see People v Paul, 78 AD3d 1684, 1684-1685, lv denied
16 NY3d 834; People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d
849), and we decline to exercise our power to review that contention
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]; People v Smith, 129 AD3d 1549, 1549-1550, lv denied 26 NY3d
971). Contrary to defendant’s contention, he was not denied effective
assistance of counsel. The record as a whole establishes that defense
counsel provided meaningful representation (see generally People v
Baldi, 54 NY2d 137, 147).
Contrary to defendant’s further contention, the conviction is
supported by legally sufficient evidence, including with respect to
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KA 13-01913
the element of defendant’s constructive possession of the gun (see
People v Farmer, 136 AD3d 1410, 1411-1412; see generally People v
Bleakley, 69 NY2d 490, 495). Moreover, 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 reject defendant’s contention that the
verdict is against the weight of the evidence, specifically with
respect to whether defendant had dominion and control over the gun or
the area in which the gun was found sufficient to give him the ability
to use or dispose of the gun (see Farmer, 136 AD3d at 1411-1412; see
also Bleakley, 69 NY2d at 495; see generally People v Mattison, 41
AD3d 1224, 1225, lv denied 9 NY3d 924).
Defendant contends on appeal that the court erred in refusing to
suppress the physical evidence on the ground that the officers who
searched the house did not have a copy of the warrant with them and
failed to show defendant a copy at his request (see generally People v
Ellison, 46 AD3d 1341, 1343, lv denied 10 NY3d 862). Although
defendant initially raised that ground in support of his suppression
motion, he failed to address it at the suppression hearing or in his
posthearing submission to the court, and the court thus did not
address it in its written decision denying the suppression motion. We
thus conclude that defendant abandoned that ground (see People v
Graves, 85 NY2d 1024, 1027; People v Perez, 52 AD3d 1244, 1244-1245,
lv denied 11 NY3d 928). Furthermore, in failing to address that
ground at the suppression hearing, defendant failed to present us with
a record adequate to enable us to review the contention (see People v
Kinchen, 60 NY2d 772, 773-774; People v Dixon, 37 AD3d 1124, 1124, lv
denied 10 NY3d 764; People v Woods, 303 AD2d 1031, 1032).
We have considered defendant’s challenge to his sentence and
conclude that it is not unduly harsh or severe.
Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court