| People v Holes |
| 2014 NY Slip Op 04643 [118 AD3d 1466] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCynthia Holes, Appellant. |
Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered August 16, 2013. The judgment convicted defendant, upon a nonjury verdict, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe facts, the indictment is dismissed and the matter is remitted to Erie County Court forproceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting her following a nonjury trialof criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]), defendant contends that County Court misapplied the law tothe facts and thereby rendered a verdict that is against the weight of the evidence. Morespecifically, defendant contends that the People failed to prove beyond a reasonabledoubt that her possession of the weapon in question was not temporary and innocent. Weagree with defendant.
The relevant facts are generally undisputed. Shortly after 6:00 p.m. on August 14,2011, defendant was walking to a store in Buffalo with her half-brother, among otherpeople. At the time, defendant was 35 years old, gainfully employed, and had no criminalrecord. In fact, she had not previously been arrested. Before reaching the store,defendant's half-brother became involved in an argument with a man who had waved athim and defendant. Defendant unsuccessfully attempted to persuade her half-brother towalk away from the dispute. Defendant's half-brother then handed her a loaded handgunand assaulted the man and a woman who was with him. Someone called 911 and, whenthe police arrived minutes later, they reported that the assailant had possessed a handgun.After stopping defendant's half-brother and determining that he did not possess a gun, thepolice stopped defendant, who was still in the vicinity, and discovered the weapon in herwaistband. She was thereafter arrested and charged with criminal possession of a weaponin the second degree. It is undisputed that the gun in question belonged to defendant'shalf-brother, who was also charged with criminal possession of a weapon in the seconddegree.
"Under our law, in certain circumstances, the possession of a weapon may beinnocent [*2]and not criminal. Innocent possession of aweapon is possession that is temporary and not for an unlawful purpose" (CJI2d[NY]Temporary and Lawful Possession; see People v Almodovar, 62 NY2d 126, 130[1984]). "This defense of 'temporary and lawful' possession applies because as a matterof policy the conduct is not deemed criminal" (Almodovar, 62 NY2d at 130).Furthermore, a "defendant is not required to prove that h[er] possession of the weaponwas innocent. Rather, the People are required to prove beyond a reasonable doubt boththat the defendant knowingly possessed the weapon and that such possession was notinnocent" (CJI2d[NY] Temporary and Lawful Possession). For this defense to beconsidered by the trier of fact, "there must be proof in the record showing a legal excusefor having the weapon in [one's] possession as well as facts tending to establish that,once possession [was] obtained, the weapon [was not] used in a dangerous manner"(People v Williams, 50 NY2d 1043, 1045 [1980]; see People v Banks, 76NY2d 799, 801 [1990]).
In determining whether a verdict is contrary to the weight of the evidence, we must"affirmatively review the record; independently assess all of the proof; substitute [our]own credibility determinations for those made by the [factfinder]; determine whether theverdict was factually correct; and acquit a defendant if [we are] not convinced that the[factfinder] was justified in finding that guilt was proven beyond a reasonable doubt" (People v Delamota, 18 NY3d107, 116-117 [2011]; seePeople v Evans, 104 AD3d 1286, 1287 [2013]). Here, based on our independentreview of the record, and viewing the evidence in light of the elements of the crime inthis nonjury trial (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the People failed toprove beyond a reasonable doubt that defendant's possession of the weapon was nottemporary and lawful.
The evidence established that defendant was the involuntary recipient of the weaponfrom her half-brother, who was in the process of starting a fight with strangers.Defendant attempted unsuccessfully to persuade her half-brother to withdraw from thealtercation, and there is no evidence that she knew that he possessed a weapon or that thegun was real or loaded. Moreover, defendant did not use the weapon in a dangerousmanner, and she did not have a sufficient opportunity to dispose of it lawfully. We alsonote that defendant testified for the prosecution during the trial of her half-brother, apredicate felon, who was convicted of possessing the weapon and sentenced to stateprison. Unlike in other cases we have recently decided involving weapons charges, theevidence here is not " 'utterly at odds with [any] claim of innocentpossession' " (People vRobinson, 63 AD3d 1634, 1635 [2009], lv denied 13 NY3d 799 [2009];see People v Smith, 63AD3d 1655, 1655 [2009], lv denied 13 NY3d 839 [2009]). We thusconclude that the verdict is against the weight of the evidence and that the indictmentmust be dismissed. Present—Centra, J.P., Lindley, Sconiers, Valentino andDeJoseph, JJ.