| People v Stewart |
| 2010 NY Slip Op 01994 [71 AD3d 797] |
| March 9, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lennox Stewart, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisnerof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.),rendered December 3, 2007, convicting him of criminal possession of a weapon in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt ofcriminal possession of a weapon in the second degree because the prosecution failed to establishthat he possessed the weapon with intent to use it unlawfully against another is unpreserved forappellate review, since the defendant made only a general motion to dismiss the indictment anddid not raise the specific ground that he raises on appeal (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484,491-493 [2008]; People v Leon, 19AD3d 509, 509-510 [2005]). While the defendant did raise a similar argument in his motionpursuant to CPL 330.30 to set aside the verdict, raising such an argument for the first time in amotion pursuant to CPL 330.30 is insufficient to preserve the claim for appellate review (seePeople v Padro, 75 NY2d 820, 821 [1990]; People v Hutchinson, 57 AD3d 565 [2008]; People v Sadler, 49 AD3d 670[2008]).
In any event, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9NY3d 342 [2007]), we nevertheless accord great deference to the factfinder's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltwas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant's contention that the Supreme Court deprived him of a fair trial by failing tocharge the jury specifically, with respect to the count of criminal possession of a weapon in thesecond degree, that he could not be found guilty if at all times he possessed the gun solely with[*2]intent to use it in self-defense also is unpreserved forappellate review, since the defendant failed to request that additional charge and/or to object tothe charge on that count as given (see CPL 470.05 [2]; People v Nix, 53 AD3d 557, 558[2008]; People v Francis, 49 AD3d552, 553 [2008]). In any event, the defendant's contention is without merit, since the court'scharge pertaining to the count of criminal possession of a weapon in the second degreeaccurately set forth the elements of the crime and the applicable burden of proof, including thatthe People must prove beyond a reasonable doubt that the defendant possessed the loaded gunwith intent to use it unlawfully against another (see People v Whalen, 59 NY2d 273, 279[1983]; People v Nix, 53 AD3d at 558; see also People v Almodovar, 62 NY2d126, 130-131 [1984]). Rivera, J.P., Santucci, Eng and Chambers, JJ., concur.