| People v Smalling |
| 2015 NY Slip Op 01973 [126 AD3d 820] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Omar A. Smalling, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Kathleen Whooley 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(McGann, J.), rendered June 8, 2012, convicting him of criminal possession of a weaponin the second degree, criminal possession of a weapon in the third degree, and tamperingwith physical evidence, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting hisconvictions is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt.Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]). Contrary to the defendant's contention, the fact that he was acquitted ofcriminal possession of a weapon in the second degree with the intent to use the weaponunlawfully against another (Penal Law § 265.03 [1] [b]) and recklessendangerment in the first degree (Penal Law § 120.25) did not underminethe sufficiency or weight of the evidence supporting the convictions of criminalpossession of a weapon in the second degree outside the home or place of business(Penal Law § 265.03 [3]), criminal possession of a weapon in the thirddegree (Penal Law § 265.02 [3]), and tampering with physical evidence(Penal Law § 215.40 [2]; see People v Rayam, 94 NY2d 557, 563[2000]; People v Mehmood,112 AD3d 850, 851 [2013]; People v Mercado, 102 AD3d 813, 813 [2013]).
The Supreme Court did not err when it gave a supplemental instruction regardingconstructive possession of a weapon in response to a note from the jury (see People vMalloy, 55 NY2d 296, 302 [1982]; People v Pilgrim, 293 AD2d 496, 497[2002]; People v Simeona, 194 AD2d 701, 701 [1993]; cf. [*2]People v Nevins, 16 AD3d 1046, 1047 [2005]).Rivera, J.P., Austin, Roman and Barros, JJ., concur.