| People v Hunter |
| 2007 NY Slip Op 10292 [46 AD3d 1417] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Davon Hunter,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered May31, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofcriminal 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 insufficientto support the conviction inasmuch as his motion for a trial order of dismissal was directed onlyat 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 lacksmerit. The People presented the requisite evidence establishing that defendant possessed a loadedweapon 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 tocredit the testimony of the witnesses who indicated that they observed defendant in possession ofa loaded weapon and believed, under the circumstances, that defendant intended to use theweapon against another (see generally People v Christian, 139 AD2d 896 [1988], lvdenied 71 NY2d 1024 [1988]).
Defendant further contends that the verdict is repugnant insofar as he was acquitted of assaultin the first degree and reckless endangerment in the first degree and convicted of criminalpossession of a weapon in the second degree. Defendant failed to preserve that contention for ourreview inasmuch as he failed to object to the verdict before the jury was excused (see Peoplev Alfaro, 66 NY2d 985, 987 [1985]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Wereject the further contention of defendant that he was denied a fair trial by prosecutorialmisconduct on summation. The comments in question were made in fair response to defensecounsel's summation (see People vSmith, 32 AD3d 1291, 1292 [2006], lv denied 8 NY3d 849 [2007]). Finally, thesentence is not unduly harsh or severe. Present—Gorski, J.P., Martoche, Lunn, Fahey andPine, JJ.