| People v Jackson |
| 2014 NY Slip Op 07842 [122 AD3d 1310] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAndre N. Jackson, Appellant. |
Donald R. Gerace, Utica, for defendant-appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.),rendered February 8, 2013. The judgment convicted defendant, upon a nonjury verdict,of criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict of one count of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]) and two counts of criminal possession of a weapon in thethird degree (§ 265.02 [1], [3]). To the extent that defendant contends onappeal that the conviction is not supported by legally sufficient evidence, we reject thatcontention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Furthermore, viewing the evidence in light of the elements of the crimes in this benchtrial (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495). The Peoplepresented evidence that defendant was apprehended in proximity to the victim's body.The recently-fired revolver, which was defaced, was recovered within 100 feet ofdefendant within the secured crime scene, while defendant's shoes and socks werelocated within 13 feet of the secreted revolver. Furthermore, DNA evidence revealed thatit was probable that defendant had handled the revolver. Although the recoveredammunition had a firing pin impression, the firearms examiner successfully dischargedthe revolver with the recovered ammunition on his first attempt. Thus, contrary todefendant's contention, we conclude that County Court could have reasonably inferredthat " 'at some point before the defendant's apprehension by the police and theconcomitant recovery of the [defaced revolver], he possessed a firearm loaded withoperable ammunition' " (People v Taylor, 83 AD3d 1505, 1506 [2011], lvdenied 17 NY3d 822 [2011]; see People v Cavines, 70 NY2d 882, 883[1987]).
Although defendant challenges the sufficiency of the evidence before the grand jury,we note that such a challenge is not properly before us. It is well settled that such achallenge is "not reviewable on this appeal from the ensuing judgment based uponlegally sufficient trial evidence" (People v Edgeston, 90 AD3d 1535, 1535-1536 [2011],lv denied 19 NY3d 973 [2012]; see CPL 210.30 [6]). Finally, contrary todefendant's further contention, we conclude that defendant's sentence is not unduly harshor severe. Present—Scudder, P.J., Fahey, Carni, Lindley and Valentino, JJ.