| People v Petitbrun |
| 2014 NY Slip Op 09020 [123 AD3d 1057] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shelton Petitbrun, Appellant. |
Deron Castro, Forest Hills, N.Y. (Patrick Michael Megaro of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Anastasia Spanakos, and Josette Simmons McGhee of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered June 10, 2011, convicting him of criminal possession of a weapon inthe second degree and criminal possession of a weapon in the fourth degree, after anonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant contends that his conviction of criminal possession of a weapon in thesecond degree is both unsupported by legally sufficient evidence and against the weightof the evidence because the People failed to establish that he had the intent to use afirearm unlawfully against another.
A person is guilty of criminal possession of a weapon in the second degree when"with intent to use the same unlawfully against another, such person . . .possesses a loaded firearm" (Penal Law § 265.03 [1] [b]). "The possessionby any person of [a loaded firearm] is presumptive evidence of . . . intent touse the same unlawfully against . . . another" (Penal Law§ 265.15 [4]; seePeople v Vincent, 80 AD3d 633, 634 [2011]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of criminal possession of a weapon in the second degree beyond areasonable doubt (see Penal Law §§ 265.03 [1] [b]; 265.15 [4];People v Galindo, 23 NY3d719, 724 [2014]; People vPeterson, 98 AD3d 1137 [2012]; People v Vincent, 80 AD3d at 634).The defendant's statement to a 911 operator that he had shot himself in the leg, togetherwith the statutory presumption that possession of that weapon indicates an intent to use itunlawfully against another, was legally sufficient to support the conviction.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, hear thetestimony, and observe [*2]demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt on thecount of criminal possession of a weapon in the second degree was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]; People v Peterson, 98 AD3d 1137 [2012]; People vVincent, 80 AD3d at 634-635).
The defendant's contention that his waiver of the right to a jury trial was inadequateis unpreserved for appellate review, as he did not challenge the adequacy of his waiver inthe Supreme Court (see CPL 470.05 [2]; People v Magnano, 77 NY2d941 [1991]; People vDixon, 113 AD3d 1104 [2014]; People v Butler, 17 AD3d 379 [2005]), and we decline toreach it in the exercise of our interest of justice jurisdiction.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are without merit (see People vGalindo, 23 NY3d at 723; People v Vincent, 80 AD3d at 634). Rivera, J.P.,Roman, Duffy and Barros, JJ., concur.