| People v Smith |
| 2009 NY Slip Op 04632 [63 AD3d 1655] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Christopher S.Smith, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), renderedDecember 14, 2005. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalpossession of a weapon in the third degree (Penal Law § 265.02 [former (4)]), defendantcontends that County Court erred in refusing to charge the defense of temporary innocentpossession of a weapon.
We reject that contention. The evidence presented at trial established that, rather thanrelinquishing the gun to the police, defendant fled on foot and threw the weapon onto a roof.Defendant's conduct was "utterly at odds with any claim of innocent possession" (People vWilliams, 50 NY2d 1043, 1045 [1980]; see People v McCoy, 46 AD3d 1348, 1349-1350 [2007], lvdenied 10 NY3d 813 [2008]) and, thus, " 'there was no reasonable view of the evidence uponwhich the jury could have found that the defendant's possession [of the weapon] was innocent' "(McCoy, 46 AD3d at 1349-1350). Present—Martoche, J.P., Smith, Fahey, Carniand Green, JJ.