| People v Spears |
| 2015 NY Slip Op 01094 [125 AD3d 1401] |
| February 6, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLonnie Spears, Appellant. |
David J. Pajak, Alden, for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns,J.), rendered November 13, 2012. The judgment convicted defendant, upon a juryverdict, of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). Defendant was indicted for his alleged involvement in arobbery and burglary, but the jury convicted him only of the single weapons count.
Defendant made only a general motion to dismiss the indictment for "facialinsufficiency," and he thus failed to preserve for our review the contentions he nowadvances on appeal (see People v Gray, 86 NY2d 10, 20-21 [1995]; People vMorris, 217 AD2d 941, 941 [1995], lv denied 87 NY2d 849 [1995]; seegenerally CPL 200.50 [7]), and we decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]). In addition, defendant's contention that the indictment did not adequately specify thecounty in which the alleged crime occurred is raised for the first time in his reply briefand is therefore not properly before us (see Matter of Sedita v Sacha, 99 AD3d 1259, 1260[2012]).
Defendant contends that the evidence is not legally sufficient to support theconviction inasmuch as the People failed to adduce any evidence at trial that the firearmat issue was operable and loaded with live ammunition. That contention is not preservedfor our review (see Gray, 86 NY2d at 19) and, in any event, lacks merit.Although the firearm was never recovered, we conclude that the People supplied thenecessary proof through circumstantial evidence, i.e., "eyewitness testimony andsurrounding circumstances" (People v Samba, 97 AD3d 411, 414 [2012], lvdenied 20 NY3d 1065 [2013]). Viewing the evidence in light of the elements of thecrime as charged to the jury, we reject defendant's further contention that the verdict isagainst the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007];People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his further contention that the verdict isrepugnant inasmuch as he failed to object to the alleged repugnancy of the verdict beforethe jury was discharged (seePeople v Ali, 89 AD3d 1417, 1420 [2011], lv denied 18 NY3d 922[2012]; see also People v Lurcock, 219 AD2d 797, 798 [1995], lv denied88 NY2d 881 [1996]). In any event, we conclude that the contention lacks merit (seePeople v Tucker, 55 NY2d 1, 7 [1981], rearg denied 55 NY2d 1039 [1982];People v McLaurin, 50AD3d 1515, 1516 [2008]; see also People v Clanton, 19 AD3d 1035, 1035-1036[2005], lv denied 5 NY3d 804 [2005]).
The sentence is not unduly harsh or severe. We have examined defendant's remainingcontentions and conclude that they lack merit. Present—Centra, J.P., Fahey,Valentino, Whalen and DeJoseph, JJ.