| People v Depaul |
| 2012 NY Slip Op 09214 [101 AD3d 1735] |
| December 28, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Barton Depaul,Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (William D. Walsh, A.J.), rendered October18, 2010. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weaponin the third degree and menacing in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of criminalpossession of a weapon in the third degree (Penal Law § 265.02 [1]) and menacing in thesecond degree (§ 120.14 [1]), arising from an incident in which defendant pointed a BB gun at apolice officer and demanded the officer's money. According to the trial testimony of the officer, the BBgun appeared to be a real handgun and he feared for his life. On appeal, defendant contends that theevidence is legally insufficient to establish that the BB gun was loaded or operable. That contention isunpreserved for our review because defendant's motion for a trial order of dismissal was not specificallydirected at that alleged deficiency in the People's proof (see People v Gray, 86 NY2d 10, 19[1995]). In any event, because defendant was charged with possessing an "imitation pistol," the Peoplewere not required to prove that the BB gun was loaded or operable. The cases relied upon bydefendant are distinguishable because the defendants therein were charged with possessing firearms; itis well settled, however, that a BB gun is not a firearm (see People v Wilson, 283 AD2d 339,340 [2001], lv denied 97 NY2d 644 [2001]; see generally People v Perez, 93 AD3d 1032, 1038 n 2 [2012], lvdenied 19 NY3d 1000 [2012]). Present—Scudder, P.J., Fahey, Carni, Lindley andSconiers, JJ.