| People v Burden |
| 2013 NY Slip Op 05237 [108 AD3d 859] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JasonBurden, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedOctober 1, 2010 in Albany County, upon a verdict convicting defendant of the crime ofcriminal possession of a weapon in the second degree (two counts).
Defendant was indicted for the crimes of criminal possession of a weapon in thesecond degree (two counts), criminal mischief in the third degree and prohibited use ofweapons after it was alleged that he had fired a handgun at a moving vehicle. Followinga jury trial, defendant was convicted of the criminal possession of a weapon counts andsentenced, as a second felony offender, to concurrent prison terms of 12 years, to befollowed by five years of postrelease supervision.
Defendant now appeals, arguing that the verdict finding him guilty on the criminalpossession counts while acquitting him on the prohibited use of weapons count wasrepugnant in light of the People's theory that he fired a shot and hit the vehicle. "[A]verdict as to a particular count shall be set aside only when it is inherently inconsistentwhen viewed in light of the elements of each crime as charged to the jury" (People vTucker, 55 NY2d 1, 4 [1981]). Here, Supreme Court charged the jury that, in orderto find defendant guilty of the criminal possession charges, the People were required toprove that he knowingly possessed a loaded firearm and that he did so with an intent touse it unlawfully against another and in a place that was not his home [*2]or place of business (see Penal Law § 265.03[1] [b]; [3]). The weapon must be operable to satisfy the definition of "loaded firearm"(Penal Law § 265.00 [15]; see People v Cavines, 70 NY2d 882, 883[1987]). Prohibited use of weapons, on the other hand, requires the willful discharge of afirearm in a public place which is not in self-defense or in discharge of an official duty(see Penal Law § 265.35 [3] [a]). Based on these elements, the jury couldhave concluded that defendant discharged the firearm, as required to prove that it wasloaded, but that the People failed to prove that the discharge was willful. Accordingly,we conclude that the verdict was not repugnant (see People v Onyia, 70 AD3d 1202, 1203-1204 [2010]; People v Lobban, 59 AD3d566, 567 [2009], lv denied 12 NY3d 818 [2009]).
Defendant also contends that the verdict finding him guilty of criminal possession ofa weapon in the second degree is against the weight of the evidence due to his acquittalon the prohibited use of weapons count. Several witnesses testified that, following adispute with the occupants of the vehicle, defendant fired a shot in the vehicle's direction,striking its bumper. Defendant presented alibi witnesses who testified that he brieflyparticipated in the dispute, but then promptly returned to his apartment and was insidewhen the shot was fired. While a different verdict would not have been unreasonable,upon viewing the evidence in a neutral light and deferring to the jury's credibilitydeterminations, we are satisfied that the verdict is not against the weight of the evidence(see People v Townsend, 94AD3d 1330, 1331 [2012], lv denied 19 NY3d 1105 [2012]; People v Mosher, 94 AD3d1231, 1232 [2012], lv denied 19 NY3d 999 [2012]). While we haveconsidered defendant's acquittal on the prohibited use of weapons count in performingour weight of the evidence review (see People v O'Neil, 66 AD3d 1131, 1134 n 2 [2009]; People v Ross, 62 AD3d619, 619 [2009], lv denied 12 NY3d 928 [2009]), we do not find that itwarrants a different result.
Finally, there is no merit to defendant's argument that a mistrial should have beengranted when a juror reported that she had observed an individual taking photographs ofthe jury during the trial. Supreme Court questioned each juror who was aware of theincident, and they all informed the court that they could remain impartial. The court thenaddressed all 12 jurors, assuring them that no images were found on the individual's cellphone, reminding them of their oath to remain impartial and directing any juror whocould not remain impartial to notify the court. Under these circumstances, we find thatSupreme Court did not abuse its discretion in denying defendant's motion for a mistrial(see People v Davis, 83AD3d 1210, 1212 [2011], lv denied 17 NY3d 794 [2011]; People v Fogarty, 12 AD3d854, 857 [2004], lv denied 4 NY3d 763 [2005]).
Stein, Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.