| People v Green |
| 2011 NY Slip Op 03919 [84 AD3d 1499] |
| May 12, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v LamountGreen, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered August 13, 2008, convicting defendant following a nonjury trial of the crime of criminalpossession of a weapon in the second degree.
Police in the City of Albany stopped an automobile that had been reported stolen and orderedits three occupants, including defendant who was in the front passenger seat, out of the vehicle.The vehicle was then searched and a loaded semiautomatic .380 caliber handgun was recoveredbeneath a mat on the floor in front of the back seat. Defendant, who was wearing a bulletproofvest, was arrested and charged with criminal possession of a weapon in the second degree andunauthorized use of a motor vehicle in the third degree. After a nonjury trial, County Court founddefendant guilty of criminal possession of a weapon in the second degree and sentenced him, as asecond felony offender, to a prison term of 12 years, plus five years of postreleasesupervision.[FN*]Defendant now appeals.[*2]
A person is guilty of criminal possession of a weapon inthe second degree when he possesses a loaded firearm, unless that possession occurs in theperson's home or place of business (see Penal Law § 265.03 [3]). Here, defendantclaims that the People did not prove that the automobile in which the firearm was found was nothis residence or place of business and, therefore, his conviction was not supported by legallysufficient evidence. However, defendant never made this argument before County Court in hismotion to dismiss and, thus, has not preserved this issue for appellate review (see People v Lumnah, 81 AD3d1175, 1177 [2011]; see also Peoplev Garcia, 79 AD3d 1248, 1250 [2010], lv denied 16 NY3d 797 [2011]).
As for defendant's claim that he was deprived of a fair trial by County Court's decision toadmit into evidence a picture taken of him when arrested wearing a bulletproof vest, we note thatthis was not a jury trial and, "[u]nlike a lay jury, a [j]udge[,] by reasons of . . .learning, experience and judicial discipline, is uniquely capable of distinguishing the issues andof making an objective determination based upon appropriate legal criteria," even if presentedwith evidence which should not have been admitted (People v Moreno, 70 NY2d 403,406 [1987] [internal quotation marks and citation omitted]; see People v Owens, 45 AD3d 1058, 1059 [2007]). Also, thebulletproof vest, coupled with defendant's statement to police that he "could have made it ugly[and] could have gone out and started shooting," was relevant to establish that he knew a loadedfirearm was in the vehicle (see People v Barrier, 298 AD2d 138, 138-139 [2002], lvdenied 99 NY2d 555 [2002]).
Spain, J.P., Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Prior to rendering its verdict,County Court, in response to a motion made by defendant, dismissed the charge of unauthorizeduse of a motor vehicle.