| People v Bailey |
| 2013 NY Slip Op 07329 [111 AD3d 1310] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vAubrey D. Bailey, II, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (James J. Piampiano, J.),rendered July 18, 2011. The judgment convicted defendant, upon a nonjury verdict, ofcriminal possession of a weapon in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of two counts of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [1] [b]; [3]). Contrary to the contention of defendant, we concludethat the evidence, viewed in the light most favorable to the People, is legally sufficient todisprove his defense of temporary and lawful possession of the weapon (see People v Lucas, 94 AD3d1441, 1441 [2012], lv denied 19 NY3d 964 [2012]; People v Myers,265 AD2d 598, 600 [1999]; People v Miller, 259 AD2d 1037, 1037 [1999],lv denied 93 NY2d 927 [1999]). Even if, as defendant contends, he originallyacquired the gun by disarming his alleged assailant in the course of a robbery, weconclude that the evidence is legally sufficient to establish that he thereafter possessed itwith the requisite unlawful intent (see People v Sheehan, 41 AD3d 335, 335 [2007], lvdenied 9 NY3d 993 [2007]; People v Gonzalez, 262 AD2d 1061, 1061-1062[1999], lv denied 93 NY2d 1018 [1999]). After evading his alleged robber,defendant returned to the scene of the robbery with the gun drawn and fired five shots,one of which struck his alleged assailant in the leg. Defendant then regained possessionof his property, a duffel bag containing $27,000 in cash, and fled upon the approach ofthe police. Such conduct is "utterly at odds with [defendant's] claim of innocentpossession . . . temporarily and incidentally [resulting] from. . . disarming a wrongful possessor" (Gonzalez, 262 AD2d at 1062[internal quotation marks omitted]; see People v Banks, 76 NY2d 799, 801[1990]; People v Aracil, 45AD3d 401, 401-402 [2007], lv denied 9 NY3d 1030 [2008]).
Defendant further contends that he had no duty to retreat, but was justified in actingas he did, because the People failed to prove that he could have retreated with completesafety. We reject that contention. It is well settled that the defense of justification, whichinvolves the "justifiable use of physical force" (Penal Law § 35.05[emphasis added]), does not apply to criminal possession of a weapon (seePeople v Pons, 68 NY2d 264, 265, 267 [1986]; see also People vAlmodovar, 62 NY2d 126, 130 [1984]; People v Jenkins, 81 AD3d 662, 663 [2011], lvdenied 16 NY3d 860 [2011]). [*2]Thus, the "duty toretreat" rule, which applies to the defense of justification in connection with the use ofdeadly physical force (see § 35.15 [2] [a]), is not relevant here.Nonetheless, justification is relevant to a defendant's intent in using a weapon. In otherwords, "[t]he use of a firearm . . . to engage in conduct that is justifiableunder the law is not unlawful. Thus, an intent to use a firearm . . . againstanother justifiably is not an intent to use it unlawfully" (CJI2d[NY] Penal Law art 265,Additional Charges, Intent to Use Unlawfully and Justification). Here, however, theevidence is legally sufficient to establish that defendant "possessed the firearm. . . with the intent to use it against another unlawfully and not solely withthe intent to use it justifiably" (id.; see People v Britton, 27 AD3d 1014, 1015 [2006], lvdenied 6 NY3d 892 [2006]; cf. Pons, 68 NY2d at 267-268).
Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9NY3d 342, 349 [2007]), we further conclude that the verdict is not against theweight of the evidence (see Gonzalez, 262 AD2d at 1061-1062; see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Additionally, we reject defendant'scontention that County Court erred in excluding testimony that, 10 months subsequent tothe events at issue, his alleged assailant was found in possession of multiple firearms."The trial court is granted broad discretion in making evidentiary rulings in connectionwith the preclusion or admission of testimony and such rulings should not be disturbedabsent an abuse of discretion" (People v Almonor, 93 NY2d 571, 583 [1999];see People v Carroll, 95 NY2d 375, 385 [2000]), and we discern no such abuseof discretion here (see Almonor, 93 NY2d at 583; see generally People vScarola, 71 NY2d 769, 777-778 [1988]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Peradotto, Carni, Valentino and Whalen, JJ.