Lead Opinion
OPINION OF THE COURT
Memorandum.
The charges herein were based on defendant’s purchase of a gun in the fall or early winter of 1995. Defendant admitted to his girlfriend that he purchased a gun, but she never saw one or knew of its whereabouts. No one knew where defendant hid it or if he still had it for approximately two years. About two months prior to December 5, 1997, defendant’s 12-year-old brother peered through a crack in the doorway of the bedroom belonging to defendant and his girlfriend and saw defendant alone holding what appeared to be the barrel of a gun. The brother did not tell defendant what he had observed. On December 5, the brother, without anyone’s permission, entered defendant’s bedroom and searched it for about an hour before finding the gun. It had been secreted in an old speaker table behind many hanging clothes in a closet. The gun and its holster were wrapped in rags. The brother was eager to show what he had found to a friend and a fatal tragedy ensued.
The credible testimony adduced by the People to establish criminal possession of a weаpon in the fourth degree amply supported the conviction. “Possess” means to “have physical possession or otherwise to exercise dominion or control over tangible property” (Penal Law § 10.00 [8]), which can mean physical or constructive possession of tangible property (People v Torres,
Endangering the welfare of a child occurs when a person “knowingly acts in a manner likely to be injurious to the physicаl, mental or moral welfare of a child less than seventeen years old * * * ” (Penal Law § 260.10 [1]). In interpreting this language, the Court in People v Johnson (
“We have previously noted that when a statute imposes criminal liability for knowingly disregarding a risk, it does not rеquire a particular outcome or actions aimed at a specific individual; the crime is solely defined by the risk of injury produсed by defendant’s conduct * * * . The same can be said here. Endangering the welfare of a child is not defined by specifically targeted acts or individuals, but by conduct which a defendant knows will present a ‘likelihood’ of harm to a child (i.e., with an awareness of the potential for harm)” (id. at 372).
In the present case, the People are, in effect, advancing a per se rule. They are suggesting that possession of a weapon in a home with a child under 17 years of age makes the possessor guilty of endangering the welfare of such child because it is “likely” that injury will occur. Defendant herein apparently had his gun for two years. It was secreted in his bedrоom and the evidence shows that his brother was not known as a “snoop” and that defendant had no knowledge that the presenсe and location of the gun had become known to his brother. The Court of Appeals held that the basis for conviction was сonduct “which a defendant knows will present a ‘likelihood’ of harm to a child (i.e., with an awareness of the potential for harm)” (People v Johnson, supra at 372). Under the circumstances, we
Concurrence in Part
concurs in part and dissents in part in the following memorandum: I concur with the majority opinion insofar as it reverses the cоnviction for endangering the welfare of a child. However, in my opinion, based on the particular facts herein, the People failed to establish the elements of criminal possession of a weapon in the fourth degree by legally sufficient evidence proving guilt beyond a reasonable doubt.
The People’s case regarding the gun possession was based entirely on cirсumstantial evidence. Defendant’s coconspirator testified that two years prior to the incident, defendant told her that he purchased the gun, but she never saw the gun, either at the time of the alleged purchase or at any time thereafter. In addition, thе People never established that the gun in the bedroom two years later was the same gun mentioned previously by the cocоnspirator. Moreover, the stereo speaker in which the gun was allegedly found did not belong to defendant, and the room was сlosed, albeit unlocked. Finally, defendant was never seen clearly with the gun because his brother only thought he saw what appeared tо be the “barrel” of a gun on the day he looked into defendant’s room.
The standard of proof required by the People in a case such as this was set forth in People v Way (
“When a defendant’s conviction is based, as here, entirely upon circumstantial evidence of his guilt, it is subject to strict judicial scrutiny, not because of any inherent weakness in this form of evidence, but to ensure that the jury has not relied upon equivocal evidence to draw unwarranted inferences or to make unsupported assumptions (People v Kennedy,47 NY2d 196 , 201; People v Benzinger,36 NY2d 29 , 32). The well-settled standard оf proof in such cases is that the facts from which the inference of defendant’s guilt is drawn must be ‘inconsistent with his innocence and must exсlude to a moral certainty every other reasonable hypothesis’ (People v Bearden,290 NY 478 , 480; see, People v Cleague,22 NY2d 363 , 366).”
The standard for appellate review to detеrmine whether the circumstantial evidence was legally sufficient to support the trial court’s finding is “whether after viewing the evidencе in
Scholnick, P.J., and Golia, J., concur; Patterson, J., concurs in part and dissents in part in a separate memorandum.