People v Watson, 2011 NY Slip Op 09729 [4th Dept 2011] [available here]
The defendant in Watson was convicted of criminal possession of a weapon in the second degree for possessing a handgun. Naturally, the main issue at trial was whether Watson actually possessed the gun. The police questioned the defendant, and he consented to a search "that yielded the gun" at issue. The fact that the police found the gun in Watson's immediate vicinity was probably a fairly compelling piece of evidence that Watson did, in fact, possess the gun.
One problem for the prosecution: Watson consented to the search after his right to counsel had attached, and his attorney was not present when he consented to the search. This is clear error, and should have led to suppression of the gun and ammunition at trial. The trial court allowed the gun and ammunition in evidence anyway, and the defendant argued on appeal that this error required reversal and a new trial.
The Fourth Department "assumed" the trial court erred, but found the error harmless, holding "there [was] no reasonable possibility that the constitutional error in failing to suppress the gun and the ammunition might have contributed to the conviction, and thus the error is harmless beyond a reasonable doubt." The decision provides no further discussion.
Pondering the Court's conclusion for more than a few moments induces a sort of logical vertigo. What jury in the world would not strongly consider the fact that the actual gun and ammunition was found on the defendant as pretty damning evidence that the defendant possessed the gun? If an error of that magnitude is found harmless, then what does a defendant need to demonstrate to actually win on appeal?
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