| People v Aracil |
| 2007 NY Slip Op 08877 [45 AD3d 401] |
| November 15, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Bertha Aracil, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered April 26, 2006,convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree,and sentencing her to a term of five years, unanimously affirmed.
The court properly denied defendant's request for a charge on the defense of temporary andlawful possession. There was no reasonable view of the evidence, viewed in a light mostfavorable to defendant (see People v Steele, 26 NY2d 526, 529 [1970]), to support such acharge. According to defendant, she first acquired the weapon by picking it up from the groundafter it fell from the waistband of a man with whom she was struggling, and then proceeded toenter an apartment building with the loaded weapon in her hand, for the purpose of intervening ina fight between her stepfather and other persons. Although her initial acquisition of the weaponcould be deemed justified, her subsequent act, which introduced a loaded firearm into a volatilesituation, was "utterly at odds with any claim of innocent possession . . .temporarily resulting from disarming a wrongful possessor" (see People v Banks, 76NY2d 799, 801 [1990] [internal quotation marks and citations omitted]). To the extent thatdefendant is claiming that she was constitutionally entitled to a jury charge on this defense, thatclaim is unpreserved and we decline [*2]to review it in theinterest of justice. Were we to review this claim, we would find it without merit.
We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Marlow,Williams, Buckley and Malone, JJ.