People v. Hunter

Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered May 31, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2)]). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction inasmuch as his motion for a trial order of dismissal was directed only at the charge of reckless endangerment in the first degree, of which defendant was acquitted (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, defendant’s contention lacks merit. The People presented the requisite evidence establishing that defendant possessed a loaded weapon with intent to use it unlawfully against another (Penal Law § 265.03 [former (2)]). Also contrary to defendant’s contention, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The jury was entitled to credit the testimony of the witnesses who indicated that they observed defendant in possession of a loaded weapon and believed, under the circumstances, that defendant intended to use the weapon against another (see generally People v Christian, 139 AD2d 896 [1988], lv denied 71 NY2d 1024 [1988]).

Defendant further contends that the verdict is repugnant *1418insofar as he was acquitted of assault in the first degree and reckless endangerment in the first degree and convicted of criminal possession of a weapon in the second degree. Defendant failed to preserve that contention for our review inasmuch as he failed to object to the verdict before the jury was excused (see People v Alfaro, 66 NY2d 985, 987 [1985]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject the further contention of defendant that he was denied a fair trial by prosecutorial misconduct on summation. The comments in question were made in fair response to defense counsel’s summation (see People v Smith, 32 AD3d 1291, 1292 [2006], lv denied 8 NY3d 849 [2007]). Finally, the sentence is not unduly harsh or severe. Present—Gorski, J.P., Martoche, Lunn, Fahey and Pine, JJ.