New trial granted in weapon case after judge’s improper instruction

A state appeals court has reversed a weapon conviction and granted a new trial because the judge gave the jury an improper instruction.

Defendant Rasheen Ross, 36, was convicted in state Supreme Court in Rochester before Justice Thomas E. Moran in May 2019 of second-degree and third-degree criminal possession of a weapon.

He was sentenced to a minimum of 16 years, two months and 25 days in state prison, and a maximum of life in state prison.

In a decision released Friday, the Appellate Division of state Supreme Court, Fourth Department, reversed the verdict and ordered a new trial.

The charges against Ross stem from an incident in which he allegedly dropped a handgun on the ground while he was being chased by police after they tried to initiate a traffic stop.

Ross’s appellate attorney, Danielle C. Wild, argued that the statutes under which Ross was convicted are unconstitutional in light of the Supreme Court of the United States decision in New York State Rifle & Pistol Assn. Inc. v Bruen.

But Ross’s trial attorney failed to raise that constitutional challenge in Supreme Court, so the contention was not preserved for review by the Fourth Department.

“We decline to exercise our power to review defendant’s constitutional challenge as a matter of discretion in the interest of justice,” the court wrote.

The Fourth Department also disagreed with the defense argument that the verdict was against the weight of the evidence.

But the panel did agree with the defense claim that the verdict must be reversed because Moran granted the prosecutor’s request to charge the jury on the issue of constructive possession.

The defense preserved the issue by objecting to the instruction on constructive possession.

“On the merits, and as the People effectively concede, we agree with defendant that the court erred in instructing the jury on constructive possession because there is no view of the evidence from which a jury could have concluded that defendant constructively possessed the handgun on the night in question … that he exercised dominion or control over the handgun by a sufficient level of control over the area where it was recovered,” the panel wrote.

“We further conclude that the error is not harmless inasmuch as we cannot determine whether the jury’s general verdict was based upon defendant’s actual possession of the handgun or his constructive possession of it,” the court wrote.

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