| People v Pena |
| 2012 NY Slip Op 08161 [100 AD3d 1024] |
| November 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JosePena, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee,Jennifer L. Feldman, and Michael L. Brenner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dowling, J.),rendered May 17, 2010, convicting him of criminal possession of a weapon in the second degreeand resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing (Guzman, J.), of that branch of the defendant's omnibus motion whichwas to suppress physical evidence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court erred in declining to instruct the jury ontemporary and lawful possession of a weapon is unpreserved for appellate review, as he failed torequest such a charge at trial (see People v Silas, 308 AD2d 465 [2003]; People vKouvaras, 197 AD2d 638 [1993]; see also People v Caldarola, 45 AD3d 600 [2007]). In any event,this contention is without merit, as there was no reasonable view of the evidence that thedefendant had a legal excuse for possessing the weapon, and that the weapon had not been usedin a dangerous manner (see People vHayes, 51 AD3d 688 [2008]; People v Medina, 237 AD2d 382 [1997];People v Kouvaras, 197 AD2d at 639).
The defendant's contention that the Supreme Court erred in denying his request to instruct thejury on voluntary possession is without merit. The court's charge, as a whole, adequatelyconveyed to the jury the correct applicable legal standards and principles, and all of the elementsof criminal possession of a weapon in the second degree (see People v Adams, 55 AD3d 616 [2008]; People v Howell, 11 AD3d 560[2004]; People v Callender, 232 AD2d 650 [1996]). The jury was correctly chargedregarding the mens rea of criminal possession of a weapon in the second degree: that thedefendant acted knowingly (see People vPerry, 67 AD3d 1046 [2009]).
The hearing court properly denied that branch of the defendant's omnibus motion which wasto suppress physical evidence. The remaining contention raised in the defendant's pro sesupplemental brief is without merit. Eng, P.J., Florio, Sgroi and Miller, JJ., concur.