| People v Taylor |
| 2011 NY Slip Op 03368 [83 AD3d 1505] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Deven R.Taylor, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered May8, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the second degree (two counts) and criminal possession of a weapon in the thirddegree.
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 of twocounts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1][b]; [3]) and one count of criminal possession of a weapon in the third degree (§ 265.02[1]). Viewing the evidence in light of the elements of the crime of criminal possession of aweapon in the second degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict with respect to those counts is against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The Peoplepresented evidence establishing that defendant was observed firing a .22 caliber revolver in thedirection of a pizzeria and that a .22 caliber bullet, which could have been shot from thatrevolver, was recovered from the pizzeria. In addition, the People established that there were nobullet holes in the mailbox of the pizzeria prior to the incident. Thus, contrary to defendant'scontention, we conclude that the jury could have reasonably inferred that, "at some point beforethe defendant's apprehension by the police and the concomitant recovery of the weapon, hepossessed a firearm loaded with operable ammunition" (People v Bailey, 19 AD3d 431, 432 [2005], lv denied 5NY3d 785 [2005]).
By failing to request that the court charge criminal possession of a weapon in the fourthdegree (Penal Law § 265.01 [1]) as a lesser included offense of criminal possession of aweapon in the second degree, defendant failed to preserve for our review his further contentionthat the court erred in failing to give such a charge (see People v Alvarez, 51 AD3d 167, 180 [2008], lv denied11 NY3d 785 [2008]; People v Ware, 303 AD2d 173 [2003], lv denied 100NY2d 543 [2003]). We reject defendant's contention that he was denied effective assistance ofcounsel based on defense counsel's failure to request that the court charge the jury with that lesserincluded offense (see generally People vCaban, 5 NY3d 143, 152 [2005]). There is no reasonable view of the evidence thatwould allow the jury to conclude, without resorting to speculation, that defendant committed thelesser offense but not [*2]the greater (see People v Laing, 66 AD3d1353, 1355 [2009], lv denied 13 NY3d 908 [2009]; see generally People vButler, 84 NY2d 627, 631-632 [1994], rearg denied 85 NY2d 858 [1995]).Present—Scudder, P.J., Smith, Lindley, Green and Gorski, JJ.