| People v Johnson |
| 2008 NY Slip Op 08853 [56 AD3d 1191] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Habib F.Johnson, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Mario J. Rossetti, A.J.),rendered July 31, 2003. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the factsby reversing that part convicting defendant of criminal possession of a weapon in the third degreeunder count one of the indictment and dismissing that count of the indictment and as modifiedthe judgment is affirmed.
Memorandum: We previously granted defendant's motion for a writ of error coram nobis (People v Johnson, 43 AD3d 1453[2007]), and defendant now appeals de novo from the judgment convicting him after a jury trialof two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1], [former (4)]). Defendant failed to preserve for our review his contention that his convictionof that crime under former subdivision (4) is not supported by legally sufficient evidence (seePeople v Gray, 86 NY2d 10, 19 [1995]). We agree with defendant, however, that the verdictwith respect to that count is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]), and we therefore modify the judgment accordingly. Anecessary element of criminal possession of a weapon under former subdivision (4) was that thesubject firearm was "both operable and loaded with live ammunition" (People v Shaffer,66 NY2d 663, 664 [1985]). Here, although the firearms examiner testified that he had test-firedthe handgun possessed by defendant and found it to be operable, he did not test-fire the singlecartridge found in the handgun. Thus, notwithstanding the speculative opinion testimony of thefirearms examiner that he "saw no problems" with the cartridge, the jury's requisite findingbeyond a reasonable doubt that the ammunition was live is against the weight of the evidence(see id.; People v Daniels, 77 AD2d 745, 746 [1980]; see generally People v Danielson, 9NY3d 342, 348-349 [2007]).
In view of our determination, we do not reach the contention of defendant that he was deniedeffective assistance of counsel based on defense counsel's failure to seek a trial order of dismissalwith respect to that count. Present—Hurlbutt, J.P., Centra, Fahey, Pine and Gorski, JJ.