| People v Lowe |
| 2014 NY Slip Op 00052 [113 AD3d 1133] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Fabrice Lowe, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered June 8, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice by reducing the sentence of imprisonment toa determinate term of five years and as modified the judgment is affirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]),defendant contends that the verdict is against the weight of the evidence. We reject thatcontention. The police found a loaded firearm inside a vehicle in which defendant was abackseat passenger. The firearm was located on the floor toward the rear of the driver'sseat, directly in front of where defendant was seated. County Court properly instructedthe jurors that the statutory presumption of possession set forth in Penal Law §265.15 (3) applies and, viewing the evidence in light of the elements of the crime ascharged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is notcontrary to the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]). Although a different verdict would not have been unreasonable, itcannot be said that the jury failed to give the evidence the weight it should be accorded(see generally id.).
We reject defendant's further contention that the court abused its discretion inrefusing to grant him youthful offender status (see People v Guppy, 92 AD3d 1243, 1243 [2012], lvdenied 19 NY3d 961 [2012]; People v Potter, 13 AD3d 1191, 1191 [2004], lv denied4 NY3d 889 [2005]), and we decline to exercise our interest of justice jurisdiction toadjudicate defendant a youthful offender (see Guppy, 92 AD3d at 1243). Weagree with defendant, however, that his sentence, a determinate term of imprisonment of10 years plus five years of postrelease supervision, is unduly harsh and severe. Defendanthas no prior criminal record and, in fact, this was his first arrest. In addition, "it isundisputed that defendant did not threaten anyone with the weapon or use it in a violentmanner" (People vAtchison, 111 AD3d 1319, 1320 [2013]). Under the circumstances, we exerciseour discretion to modify the judgment in the interest of justice by reducing the sentenceimposed to a [*2]determinate term of imprisonment offive years (see generally CPL 470.15 [6] [b]), to be followed by the five-yearperiod of postrelease supervision imposed by the court.
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Centra, J.P., Peradotto, Carni, Lindley and Valentino, JJ.