| People v Verni |
| 2015 NY Slip Op 02991 [127 AD3d 887] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Michael Verni, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Sharon Y. Brodt, and Ushir Pandit of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Knopf, J.), rendered April 20, 2012, convicting him of criminal possession of a weaponin the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant contends that the evidence was legally insufficient to support hisconviction of criminal possession of a weapon in the second degree because the Peoplefailed to establish that he possessed a loaded firearm outside of his home or place ofbusiness in violation of Penal Law § 265.03 (3). However, viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. A "valid line of reasoning and permissible inferences" (People v Danielson, 9 NY3d342, 349 [2007]) exists from which a rational jury could have concluded that thedefendant discharged the two bullets from his handgun into his chest while seated in hisautomobile, and that therefore he possessed the handgun, while still loaded, outside hishome or place of business (seePeople v Taylor, 83 AD3d 1505, 1506 [2011]; People v Laing, 66 AD3d1353, 1354 [2009]; People v Williams, 167 AD2d 565, 566 [1990]).Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
However, under the facts presented at trial, the trial court erred in denying thedefendant's request to charge the jury on criminal possession of a weapon in the fourthdegree. Criminal possession of a weapon in the fourth degree is a lesser included offenseof criminal possession of a weapon in the second degree as charged in the indictment(see People v Menchetti, 76 NY2d 473, 478 [1990]; People v Laing, 66AD3d at 1355). Viewed in the light most favorable to the defendant, there was areasonable view of the evidence that could have supported an inference that thedefendant shot himself in his home or place of business prior to entering his automobile,and that he therefore may have been guilty of the lesser crime but not the greater(see CPL 300.50 [1]; People v Martin, 59 NY2d 704, 705 [1983];People v Glover, 57 NY2d 61, 63 [1982]; People v Borges, 90 AD3d 1067, 1069 [2011]; People v Brockett, 74 AD3d1218, 1220 [2010]; Peoplev Bethea, 24 AD3d 685 [2005]). Although the jury could have inferred fromcircumstantial evidence that the defendant shot himself inside his [*2]automobile, they were not required to do so (seegenerally People v Henderson, 41 NY2d 233, 236-237 [1976]).
The defendant's contention that he was deprived of the effective assistance ofcounsel is based, in part, on matter appearing on the record and, in part, on matter outsidethe record and, thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d1108, 1109 [2011]; seePeople v Evans, 16 NY3d 571, 575 n 2 [2011]; People v Credle, 124 AD3d792, 793 [2015]). In this case, it is not evident from the matter appearing on therecord that the defendant was deprived of the effective assistance of counsel (cf.People v Crump, 53 NY2d 824 [1981]; People v Brown, 45 NY2d 852[1978]). Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewingthe claim in its entirety (seePeople v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89AD3d at 1109). Although the defendant made a postconviction motion to vacate thejudgment pursuant to CPL 440.10, the issues raised in that motion are not properlybefore us, as he was denied leave to appeal from the denial of that motion (see People v Coleman, 125AD3d 879 [2015]; People vDeLuca, 45 AD3d 777 [2007]).
The defendant's remaining contention is without merit. Eng, P.J., Dillon, Chambersand Barros, JJ., concur. [Prior Case History: 35 Misc 3d 1204(A), 2012 NY Slip Op50552(U).]