| People v Johnson |
| 2011 NY Slip Op 02754 [83 AD3d 1130] |
| April 7, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Maceo D.Johnson, Appellant. |
—[*1]
Lahtinen, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered April 1, 2010, upon a verdict convicting defendant of the crimes ofcriminal possession of a weapon in the second degree, criminal possession of a weapon in thethird degree (two counts) and criminal contempt in the second degree.
After a brief standoff with law enforcement officers, defendant was taken into custody onSeptember 17, 2009 for charges stemming from a domestic dispute with his girlfriend. Atemporary order of protection was issued directing him to stay away from and not communicatewith his girlfriend, as well as to surrender all his guns by 3:00 p.m. the next day. Shortly afterbeing released, defendant violated the order of protection by sending a text message to hisgirlfriend, which resulted in his arrest on September 18, 2009. A consented search of his homefollowing his arrest failed to produce any guns and, although he initially claimed that his gunsmust have been stolen, he eventually acknowledged that he had moved them to the apartment ofa friend, Willie Taylor.
Taylor consented to a search of his apartment where police found, among other things, anAR-15 semiautomatic rifle together with loaded clips of ammunition for the rifle. The rifleallegedly had a detachable magazine as well as various modifications, including a pistol grip,[*2]7.5-inch barrel, collapsible stock, flash suppressor andbayonet mount (see Penal Law § 265.00 [3], [22]). Defendant admitted that theweapons found in Taylor's apartment belonged to him. He was charged in a six-count indictmentand, following a jury trial, he was convicted of one count of criminal possession of a weapon inthe second degree (count one), two counts of criminal possession of a weapon in the third degree(counts two and three), and criminal contempt in the second degree (count five). He wassentenced to maximum prison terms of six years on the possession counts and one year on thecriminal contempt, all to run concurrently. Defendant appeals.
Defendant argues that his conviction of criminal possession of a weapon in the second degreewas not supported by legally sufficient evidence and was against the weight of the evidence.Specifically, he challenges the proof as to the element of intent to use the weapon against another(see Penal Law § 265.03 [1]). In legal sufficiency analysis, we view the evidence inthe light most favorable to the People and "determine whether there is any valid line of reasoningand permissible inferences which could lead a rational person to the conclusion reached by thejury on the basis of the evidence at trial" (People v Bleakley, 69 NY2d 490, 495 [1987];see People v Self, 75 AD3d924, 925 [2010], lv denied 15 NY3d 895 [2010]).
Here, defendant does not contend that the proof was not adequate to establish that hepossessed a loaded firearm as that term is defined in Penal Law § 265.00 (15). There is astatutory presumption that permits, but does not require, that the element of intent to use thefirearm unlawfully against another may be inferred from such possession (see Penal Law§ 265.15 [4]; CJI2d[NY] Penal Law § 265.15 [4]; People v Vargas, 60 AD3d 1236,1238 [2009], lv denied 13 NY3d 750 [2009]). In addition to the statutory presumption,there was also evidence of defendant making threats of serious harm to his girlfriend. Further, apolice officer heard him state that he could have "taken any of us out" during the standoff, and hewas seen that night by an officer as he crouched and moved about apparently armed with anassault rifle. Defendant misled law enforcement officers about his weapons and he attempted tokeep the weapons, despite the terms of the order of protection, by temporarily placing them witha friend. Viewing the evidence in the light most favorable to the People and considering thestatutory presumption, we are unpersuaded that the jury's verdict was not supported by legallysufficient evidence (see People vDuran, 6 AD3d 809, 811 [2004], lv denied 3 NY3d 639 [2004]; People v Berry, 5 AD3d 866, 868[2004], lv denied 3 NY3d 637 [2004]).
Considering the weight of the evidence, a different verdict on this count would not have beenunreasonable, thus we "must, like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony" (People v Romero, 7NY3d 633, 643 [2006] [internal quotation marks and citations omitted]). In his statement topolice, which was admitted into evidence, defendant related that he hid his weapons because hehad a lot of money invested in them and did not want to relinquish possession as required by theorder of protection. Although such statement, if believed, might serve to rebut the statutorypresumption, the jury did not find this explanation credible. Upon weighing and considering theevidence, while giving deference to the jury's credibility determination, we find that the verdict isnot against the weight of the evidence (see id. at 644; People v Bleakley, 69NY2d at 495; People v Medina, 49AD3d 342, 342-343 [2008], lv denied 10 NY3d 961 [2008]).
Defendant further asserts that his convictions of counts one, two and three should be reversedbecause the People failed to properly disclose their testing of the operability of the rifle. The testconsisted of a police officer firing it twice into a piece of cardboard and, prior to trial, defendant[*3]was afforded access to the cardboard. To the extent that thePeople were dilatory in their disclosure, any prejudice was vitiated under the circumstances byCounty Court offering defendant the opportunity for similar testing (cf. People vCrandall, 228 AD2d 794, 795 [1996], lv denied 88 NY2d 983 [1996]).
Kavanagh, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed.