Opinion
512 KA 18-01885
07-28-2023
The PEOPLE of the State of New York, Respondent, v. James R. WILSON, Defendant-Appellant.
MICHAEL JOS. WITMER, ROCHESTER, FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
MICHAEL JOS. WITMER, ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of two counts of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [1] [b] ; [3]) and one count of endangering the welfare of a child (§ 260.10 [1]). Defendant contends that the verdict is against the weight of the evidence because the gun that was recovered was inoperable. To establish criminal possession of a handgun, the People must prove that the weapon was operable (see People v. Longshore , 86 N.Y.2d 851, 852, 633 N.Y.S.2d 475, 657 N.E.2d 496 [1995] ; People v. Magee , 182 A.D.3d 996, 997, 123 N.Y.S.3d 310 [4th Dept. 2020], lv denied 35 N.Y.3d 1028, 126 N.Y.S.3d 44, 149 N.E.3d 882 [2020] ). Here, a firearms examiner testified that the revolver was inoperable at the time it was examined because the hammer was stuck in the cocked position. He further testified, however, that the unfired cartridges that were recovered during the investigation had impressions on them that suggested possible misfires. One of the victims testified that a man fired shots at him and the second victim, and the second victim testified that defendant fired three shots at them and then continued to pull the trigger, but "nothing was happening." Viewing the evidence in light of the elements of the crimes 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 [2007] ), we conclude that, although a different finding would not have been unreasonable, it cannot be said that Supreme Court failed to give the evidence the weight it should be accorded (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). The eyewitness testimony and the surrounding circumstances established that defendant possessed a loaded and operable firearm at the time of the incident (see Magee , 182 A.D.3d at 997, 123 N.Y.S.3d 310 ; People v. Redmond , 182 A.D.3d 1020, 1022, 123 N.Y.S.3d 331 [4th Dept. 2020], lv denied 35 N.Y.3d 1048, 127 N.Y.S.3d 856, 151 N.E.3d 537 [2020] ; see generally People v. Nelson , 177 A.D.3d 1258, 1260, 112 N.Y.S.3d 372 [4th Dept. 2019], lv denied 34 N.Y.3d 1161, 120 N.Y.S.3d 246, 142 N.E.3d 1148 [2020] ).
Defendant's remaining contentions are unpreserved for our review (see CPL 470.05 [2] ), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).