People v Grant

2008 NY Slip Op 07147 [54 AD3d 967]

September 23, 2008

Appellate Division, Second Department

As corrected through Wednesday, October 29, 2008

The People of the State of New York,Respondent, v Shawn Grant, Appellant.

—[*1]Gary M. Gash, White Plains, N.Y. (Neal D. Futerfas of counsel), for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Valerie A. Livingston, RichardLongworth Hecht, and Anthony J. Servino of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Molea, J.), rendered May 16, 2003, convicting him of criminal possession of a weapon in thesecond degree and reckless endangerment in the first degree, upon a jury verdict, and imposingsentence.

Ordered that the judgment is affirmed.

The defendant's challenge to the legal sufficiency of the evidence on his conviction ofcriminal possession of a weapon in the second degree is unpreserved for appellate review (seeCPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Carranza,306 AD2d 351, 352 [2003], affd 3 NY3d 729 [2004]; People v Rodriguez,200 AD2d 775 [1994]; People v Udzinski, 146 AD2d 245, 250 [1989]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltof criminal possession of a weapon in the second degree beyond a reasonable doubt. The Peoplepresented the requisite evidence establishing that the defendant possessed a loaded operableweapon with the intent to use it unlawfully against another (see People v Hunter, 46 AD3d 1417 [2007]; People v Pricher,221 AD2d 378 [1995]). Moreover, upon the exercise of our factual review power (seeCPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).

The defendant's contention that a detective's testimony that the victim named the defendantas the [*2]shooter was inadmissible as an excited utterance waswaived when the defense elicited the same testimony on cross-examination (see People v Holmes, 47 AD3d946 [2008]; People v Blackman,13 AD3d 640 [2004]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 83[1982]).

The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Lifson, J.P., Florio, Eng and Belen, JJ., concur.