People v. Grierson

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered March 1, 2016, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the third degree.

In response to a 911 call regarding a domestic dispute between two couples, police officers were dispatched to a second-floor apartment that defendant and his girlfriend, Tabitha Keating, shared with his sister, Kenesha Grierson, and his sister’s boyfriend, Clemento Jones. During the course of investigating the dispute, the officers were alerted to the possibility that defendant possessed a gun. Defendant was thereafter detained and a subsequent search of the apartment revealed an unloaded gun that was hidden in a garbage bag on the front porch of the apartment, an area allegedly used only by defendant and Keating. As a result, defendant was charged with criminal possession of a weapon in the third degree and criminal possession of stolen property in the fourth degree. Following a jury trial, he was convicted of criminal possession of a weapon in the third degree, but acquitted of criminal possession of stolen property in the fourth degree. He now appeals.

Defendant contends that his conviction is not supported by legally sufficient evidence and is against the weight of the evidence because the People failed to prove that he constructively possessed the gun. We cannot agree. The trial testimony established that defendant and Keating resided in the front half of the apartment, which consisted of a front bedroom and a small room that led to the front porch. It is undisputed that

There was also evidence that the gun discovered on the front porch was similar to the type of gun that defendant described to Jones, and DNA retrieved from the gun was consistent with DNA from Keating and at least two additional donors, one of whom was male. Notably, Jones denied that he ever came into contact with a gun in the apartment and the only male police officer who touched the gun at issue testified that he did so while he was wearing protective gloves. Viewing all of this evidence in the light most favorable to the People (see generally People v Ramos, 19 NY3d 133 , 136 [2012]), we find that a valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the jury that defendant constructively possessed the gun (see People v Graham, 138 AD3d 1242 , 1243 [2016], lv denied 28 NY3d 930 [2016]; People v McGough, 122 AD3d 1164 , 1167 [2014], lv denied 24 NY3d 1220 [2015]; People v Rodwell, 122 AD3d 1065 , 1067 [2014], lv denied 25 NY3d 1170 [2015]). Further, although a different verdict would not have been unreasonable, upon reviewing the evidence in a neutral light and deferring to the jury’s resolution of credibility issues (see generally People v Criss, 151 AD3d 1275 , 1279 [2017]), we are satisfied that the verdict is in accord with the weight of the evidence (see People v Cherry, 149 AD3d 1346 , 1347 [2017], lv denied 29 NY3d 1124 [2017]; People v McGough, 122 AD3d at 1167 ; People v Perry, 116 AD3d 1253 , 1255 [2014]).

Nevertheless, we are persuaded that reversal is warranted as a result of two evidentiary errors. During the trial, County Court permitted four police officers to testify as to Jones’ and Grierson’s statements that gave rise to the search for the gun. It is well settled that “[s]uch [testimony] may be permitted if it

Compounding this error, County Court improperly allowed the People to impeach Grierson, their own witness, with her prior grand jury testimony. A party may impeach its own witness with a prior contradictory statement when the “witness gives testimony upon a material issue or fact which ‘tends to disprove the party’s position or affirmatively damages the party’s case’ ” (People v Andujar, 290 AD2d 654 , 656 [2002], lv denied 98 NY2d 648 [2002], quoting People v Saez, 69 NY2d 802 , 804 [1987]; see CPL 60.35 [1]; People v Berry, 27 NY3d 10 , 17 [2016]). Although Grierson testified before the grand jury that she told the police officers about her previous conversation with defendant concerning a gun and her belief based upon that conversation that defendant might have a gun in the apartment, at trial she denied that she made those statements to the officers. She did admit, however, that she had the previous conversation with defendant. In our view, Grierson’s trial testimony did not tend to disprove the People’s position that defendant constructively possessed the gun, nor did it affirmatively damage their case. Rather, Grierson’s trial testimony merely failed to corroborate or bolster the officers’ explanatory background testimony. Accordingly, the People should not have been permitted to impeach Grierson with her grand jury testimony (see People v Fitzpatrick, 40 NY2d 44 , 52 [1976]; People v Abrams, 73 AD3d 1225 , 1227 [2010], affd 17 NY3d 760 [2011]; People v Andujar, 290 AD2d at 656 ; compare People v Davis, 45 AD3d 1039 , 1042 [2007], lv denied 10 NY3d 763 [2008]).

Peters, P.J., McCarthy, Mulvey and Rumsey, JJ., concur.

Ordered that the judgment is reversed, on the law, and matter remitted to the County Court of Schenectady County for a new trial.