| People v Purvis |
| 2011 NY Slip Op 09219 [90 AD3d 1339] |
| December 22, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Sean F.Purvis, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered August 18, 2010, upon a verdict convicting defendant of the crime of criminalpossession of a weapon in the third degree.
Defendant was charged in an indictment with criminal possession of a weapon in the thirddegree, menacing in the second degree and harassment in the second degree after he allegedlywaived a box cutter at a store clerk and threatened to kill him and cut his throat after an argumentat a convenience store in the City of Albany. Following a jury trial at which two store clerks,defendant and a friend testified, offering conflicting accounts of the incident, defendant wasconvicted of the criminal possession charge but acquitted of the other charges. Sentenced to2½ to 5 years in prison as a second felony offender, defendant appeals, and we affirm.
Defendant contends that the conviction is not based upon legally sufficient evidence and isagainst the weight of the evidence because he never deployed or opened the blade from itshandle, he exited the store voluntarily after the confrontation in which the clerk threatened himwith a bat, and his intent to use the blade unlawfully against the clerk was not demonstrated. Inorder to convict defendant of criminal possession of a weapon in the third degree, the Peoplewere required to prove, beyond a reasonable doubt, that he possessed the box cutter with intent touse it unlawfully against another (see Penal Law § 265.02 [1]; § 265.01 [2]).The store clerk testified that defendant, who he knew from regular visits, entered [*2]the store, put a magazine in his pocket and headed for the doorwithout paying for it. The clerk directed defendant to return the magazine, defendant refused,cursing at him, and then the clerk called defendant a disparaging name. Defendant put themagazine down and left the store, returning minutes later, and waived the box cutter at the clerk,who was behind the counter with a coworker; defendant came within about one foot of the clerk,threatening to "kill [him]" and "cut his throat." The coworker picked up a bat for protection whilethe clerk called police, and defendant left the store. Minutes later, responding police came upondefendant one-half block away near his home and observed him throw an object to the ground;police recovered a closed lime-green box cutter at that location and arrested defendant.
The coworker similarly testified that defendant, who he knew, entered the store with severalfriends and, while yelling, threatened to kill the clerk while displaying what he observed to be aknife, the silver or front portion extending about three inches beyond defendant's hand. Thecoworker then picked up a bat to deter defendant. A video recording from the store's surveillancecameras taken of the incident from the time defendant reentered the store was played for the juryat trial, showing that portion of the incident (without sound) from several angles.
Viewing the foregoing evidence in a light most favorable to the People, there was a valid lineof reasoning and permissible inferences to lead rational persons to the conclusion reached by thejury that defendant possessed the box cutter with intent to use it unlawfully against another(see People v Rossey, 89 NY2d 970, 971-972 [1997]; People v Bleakley, 69NY2d 490, 495 [1987]). The manner in which defendant, upon reentering the store, advancedtoward the clerks and brandished the box cutter, coming in close proximity, and threatened toharm or kill the clerk, supports the jury's conclusion that defendant intended to use the weapon inan unlawful manner (see People vFisher, 52 AD3d 1120, 1120-1121 [2008], lv denied 11 NY3d 832 [2008]; People v Jackson, 38 AD3d 1052,1054 [2007], lv denied 8 NY3d 986 [2007]; People v Holland, 279 AD2d 645,646 [2001], lv denied 96 NY2d 801 [2001]).
Defendant's challenge to the jury's verdict as contrary to the weight of credible evidencefocuses particularly on its finding regarding his intent in possessing and displaying the boxcutter. While defendant and his friend provided a different version of the incident, the jury wasable to assess their credibility and the accuracy of their account and was free to reject thistestimony in favor of the People's witnesses and their own interpretation of the surveillancevideotape (see People v Califano,84 AD3d 1504, 1505-1506 [2011], lv denied 17 NY3d 805 [2011]).
Defendant testified that he entered the store and picked up the magazine, intending to pay forit, when the clerk started yelling at him and questioning what he was doing; the clerk called hima name and directed that he put it back and leave. Defendant continued to hold onto themagazine—apparently slipping it into the back of his clothing to aggravate theclerk—and angry words were exchanged. Defendant then put the magazine down and left,but claimed he returned seconds later to make a purchase, when the clerk again told him to leaveand threatened to hit him with a bat, which the clerk, and then his coworker, grabbed. Defendantclaimed that he took the box cutter out of his pocket because he was afraid and admitted that hewaived it at the clerk; he confirmed his identity on the video, but claimed he never opened thebox cutter and never intended to use it against anyone. Defendant denied ever threatening toharm or kill the clerk. He left the store and went home and was confronted by police with gunsdrawn, who directed him to drop whatever was in his hands, and he complied, throwing the box[*3]cutter to the sidewalk. The box cutter, recovered by police atthe time of defendant's arrest and received in evidence, was demonstrated for the jury and shownto be operational with a rapidly deployable blade.
Viewing the evidence in a neutral light and weighing the probative value of the conflictingtestimony and the conflicting inferences that could be drawn, while deferring to the jurors' abilityto observe the witnesses and assess their credibility, aided by the video recording, we find that itwas not contrary to the weight of the credible evidence for the jury to find that defendantpossessed the box cutter—with its deployable blade—with unlawful intent (seePeople v Bleakley, 69 NY2d at 495; People v Califano, 84 AD3d at 1506; People v Smith, 63 AD3d 1301,1303 [2009], lv denied 13 NY3d 862 [2009]).
Peters, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.