Opinion
2014-05-2
The PEOPLE of the State of New York, Respondent, v. Andrew CRAIG, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Danielle N. D'Abate of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Danielle N. D'Abate of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] ). Contrary to defendant's contention, we conclude that the evidence, viewed in the light most favorable to the People, is legally sufficient to disprove his defense of temporary and lawful possession of the weapon ( see People v. Bailey, 111 A.D.3d 1310, 1311, 974 N.Y.S.2d 227;People v. Lucas, 94 A.D.3d 1441, 1441, 942 N.Y.S.2d 842,lv. denied19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214;see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant found a loaded gun in a park and took the gun with him when his father drove him to his mother's house. A police officer found the gun concealed in a bag of clothing after initiating a traffic stop of the vehicle operated by defendant's father. Although defendant claimed that he intended to turn the gun in at a church's gun buy back program, defendant's retention of the gun beyond opportunities to hand it over to the police is “ ‘utterly at odds with any claim of innocent possession’ ” ( People v. Griggs, 108 A.D.3d 1062, 1063, 968 N.Y.S.2d 302,lv. denied21 N.Y.3d 1074, 974 N.Y.S.2d 323, 997 N.E.2d 148;see People v. Ward, 104 A.D.3d 1323, 1324–1325, 960 N.Y.S.2d 839,lv. denied21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1286;People v. Smith, 63 A.D.3d 1655, 1655, 879 N.Y.S.2d 652,lv. denied13 N.Y.3d 839, 890 N.Y.S.2d 455, 918 N.E.2d 970).
We further reject defendant's contention that the verdict is against the weight of the evidence. County Court could reasonably have found that defendant retained possession of the gun despite having the opportunity to turn it over to lawful authorities ( see People v. Hicks, 110 A.D.3d 1488, 1488, 972 N.Y.S.2d 800;Griggs, 108 A.D.3d at 1063, 968 N.Y.S.2d 302). Viewing the evidence in light of the elements of the crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.