| People v Galindo |
| 2012 NY Slip Op 08246 [101 AD3d 408] |
| December 4, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Oliverio Galindo, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered October 25, 2010,convicting defendant, after a jury trial, of two counts of criminal possession of a weapon in thesecond degree, and sentencing him to concurrent terms of four years, unanimously affirmed.
With regard to the conviction under Penal Law § 265.03 (1) (b), the circumstances ofdefendant's possession of a loaded firearm, viewed in light of the statutory presumption ofunlawful intent (Penal Law § 265.15 [4]), provided legally sufficient evidence ofdefendant's intent to use a weapon unlawfully against another. Evidence that defendant's shootingof his cousin was accidental did not warrant a different conclusion, since the People were notrequired to prove that defendant specifically intended to use the weapon against any particularperson. With regard to the conviction under Penal Law § 265.03 (3), defendant failed topreserve his claim that the evidence was insufficient to establish possession outside defendant'shome or place of business, and we decline to review it in the interest of justice. As an alternativeholding, we reject it on the merits, because the only reasonable interpretation of a portion ofdefendant's admission to a friend was that the shooting took place outdoors. With regard to bothconvictions, we also find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d342, 348 [2007]).
Defendant did not preserve his challenges to the prosecutor's summation and the court'sresponse to a jury note, and we decline to review them in the interest of justice. As an alternativeholding, we find no basis for reversal as to either issue (see People v D'Alessandro, 184AD2d 114, 118-119 [1st Dept 1992], lv denied 81 NY2d 884 [1993]; People vMalloy, 55 NY2d 296 [1982], cert denied 459 US 847 [1982]).
Defendant asserts that his counsel rendered ineffective assistance by failing to raise theunpreserved issues. To the extent the record permits review, we conclude that defendant receivedeffective assistance under the state and federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).Defendant has not shown that his counsel's failure to raise these issues fell below an objectivestandard of [*2]reasonableness, or that, viewed individually orcollectively, they deprived defendant of a fair trial, affected the outcome of the case, or causeddefendant any prejudice.
We perceive no basis for reducing the sentence. Concur—Saxe, J.P., Friedman,Acosta, Renwick and Freedman, JJ.