| People v Laing |
| 2009 NY Slip Op 06906 [66 AD3d 1353] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Darien Laing,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered October 24, 2007. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]).Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidenceby failing to renew his motion for a trial order of dismissal after presenting evidence (see People v Lane, 7 NY3d 888,889 [2006]; People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]). In any event, defendant's contention lacks merit. The People presented legally sufficientevidence establishing that defendant possessed a loaded firearm while walking down an alleyadjacent to a nightclub, thereby establishing that his possession of a loaded firearm did not occurin his "home or place of business" (Penal Law § 265.03 [3]; see People vRodriguez, 68 NY2d 674 [1986], revg for reasons stated in dissenting op 113 AD2d337, 343-348; People v Williams, 167 AD2d 565 [1990]). Viewing the evidence in thelight most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]),we conclude that there is a " 'valid line of reasoning and permissible inferences from which arational jury could have found the elements of the crime proved beyond a reasonable doubt' " (People v Danielson, 9 NY3d 342,349 [2007]). Contrary to defendant's further contention, viewing the evidence in light of theelements of the crime as charged to the jury (see id.), we conclude that the verdict is notagainst the weight of the evidence (see generally id. at 348-349; People vBleakley, 69 NY2d 490, 495 [1987]).
We further reject the contention of defendant that Supreme Court erred in denying hisrequest to submit criminal possession of a weapon in the fourth degree (Penal Law §265.01 [1]) as a lesser included offense of criminal possession of a weapon in the second degree(§ 265.03 [3]). Although defendant is correct that criminal possession of a weapon in thefourth degree is in fact a lesser included offense, i.e., it is impossible to possess a loaded firearmnot in a person's home or place of business without concomitantly possessing a firearm (seePeople v Menchetti, 76 NY2d 473, 478 [1990]; People v Perez, 128 AD2d 410[1987], lv denied 69 NY2d 1008 [1987]; see [*2]generally People v Glover, 57 NY2d 61, 63 [1982]), there is noreasonable view of the evidence to support a finding that defendant committed the lesser offensebut not the greater (see People vBrandon, 57 AD3d 1489 [2008], lv denied 12 NY3d 814 [2009]; seegenerally Glover, 57 NY2d at 63). The evidence established that defendant possessed aloaded firearm, not an unloaded firearm, and that the possession of the loaded firearm in thealley did not occur at defendant's home or place of business. Finally, the sentence is not undulyharsh or severe. Present—Hurlbutt, J.P., Centra, Fahey, Pine and Gorski, JJ.