| People v Mathieu |
| 2011 NY Slip Op 02903 [83 AD3d 735] |
| April 5, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v HarryMathieu, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Michael J. Balchof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan,J.), rendered July 20, 2009, convicting him of criminal possession of a weapon in the seconddegree and tampering with physical evidence, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his challenge to the legal sufficiency ofthe evidence with respect to the charge of criminal possession of a weapon in the second degree,as he failed, in his trial motion to dismiss, to raise the specific contentions that he now raises onappeal (see CPL 470.05 [2]; People v Goddard, 72 AD3d 839, 839-840 [2010]; People v Kearney, 25 AD3d 622,623 [2006]). In any event, there was legally sufficient evidence of the defendant's guilt ofcriminal possession of a weapon in the second degree. Moreover, in fulfilling our responsibilityto conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses,hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt on the count chargingcriminal possession of a weapon in the second degree was not against the weight of the evidence(see People v Romero, 7 NY3d633 [2006]). The defendant was convicted of criminal possession of a weapon in the seconddegree pursuant to Penal Law § 265.03 (3), which provides that a "person is guilty ofcriminal possession of a weapon in the second degree when . . . such personpossesses any loaded firearm" outside of his or her "home or place of business." The Penal Lawdefines a "loaded firearm" as "any firearm loaded with ammunition or any firearm which ispossessed by one who, at the same time, possesses a quantity of ammunition which may be usedto discharge such firearm" (Penal Law § 265.00 [15]). "In order to support a conviction forcriminal possession of a weapon in the second degree, which requires a 'loaded firearm,' thePeople must prove that both the firearm and the ammunition were operable" (People vAguilar, 202 AD2d 512, 513 [1994] [citation omitted]; see People v Cavines, 70NY2d 882 [1987]; People v Shaffer, 66 NY2d 663, 664 [1985]). Here, although thePeople did not set forth the basis for the conclusion that the gun was recovered containing aso-called "live round," the testimony of witnesses and forensic evidence were sufficient to showthat the defendant fired the gun at the scene of the occurrence. Therefore, contrary to thedefendant's contention, the evidence was sufficient to prove [*2]that he possessed a "loaded firearm" that was operable andcontained live ammunition, for purposes of the count of criminal possession of a weapon in thesecond degree under Penal Law § 265.03 (3) (see People v Harris, 305 AD2d 614,615 [2003]; People v Solis, 214 AD2d 689 [1995]).
The People also adduced legally sufficient proof with respect to the count of tampering withphysical evidence, and the verdict of guilt on that count was not against the weight of theevidence (see People v Green, 54AD3d 603 [2008]; People vGrier, 47 AD3d 729, 730 [2008]; People v Lucas, 25 AD3d 822, 823 [2006]; People vHiggins, 299 AD2d 841, 843 [2002]; People v Bussey, 295 AD2d 444, 444 [2002]).
The record demonstrates that the defendant was afforded the effective assistance of counsel(see People v Taylor, 1 NY3d174 [2003]; People v Benevento, 91 NY2d 708, 711-713 [1998]; People v Hernandez, 49 AD3d335, 336 [2008]; People vWinchell, 46 AD3d 1096, 1098 [2007]).
The defendant failed to preserve for appellate review his contention that the Supreme Courtrelied on purportedly misleading information in the presentence report (see CPL 470.05[2]; People v Baez, 52 AD3d840 [2008]; People v Butler, 10AD3d 368, 368-369 [2004]). In any event, that contention is without merit (see People vHansen, 99 NY2d 339, 346 [2003]; People v Guevara, 68 AD3d 1738, 1739 [2009]; People vBaez, 52 AD3d at 840).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Skelos, J.P., Eng, Austin and Cohen, JJ., concur.