| People v Simmons |
| 2015 NY Slip Op 08263 [133 AD3d 1227] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTimmy L. Simmons, Appellant. |
Patricia M. McGrath, Lockport, for defendant-appellant.
Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Niagara County (Matthew J.Murphy, III, A.J.), rendered April 23, 2014. The judgment convicted defendant, upon ajury verdict, of criminal possession of a weapon in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofcriminal possession of a weapon in the fourth degree (Penal Law § 265.01[4]), defendant contends that the evidence is legally insufficient to support the convictionbecause the People failed to present evidence that he possessed a shotgun on or about thedate charged in the accusatory instrument and failed to present legally sufficient evidenceof possession. Because defendant's motion for a trial order of dismissal and his renewedmotion after putting in his own proof were not " 'specifically directed' "at the first alleged error, defendant failed to preserve that contention for our review(People v Gray, 86 NY2d 10, 19 [1995]). We reject defendant's challenge to thesufficiency of the evidence that he possessed the shotgun. We conclude that "viewing thefacts in [the] light most favorable to the People, 'there is a valid line of reasoning andpermissible inferences from which a rational jury could have found the elements of thecrime proved beyond a reasonable doubt' " (People v Danielson, 9 NY3d 342, 349 [2007], quotingPeople v Acosta, 80 NY2d 665, 672 [1993]).
Defendant further contends that he was deprived of a fair trial by prosecutorialmisconduct on summation. By failing to object to any of the alleged instances ofprosecutorial misconduct, defendant failed to preserve that contention for our review(see CPL 470.05 [2]; People v Easley, 124 AD3d 1284, 1285 [2015], lvdenied 25 NY3d 1200 [2015]). In any event, we conclude that defendant's contentionis without merit. Present—Scudder, P.J., Smith, Carni, Lindley and Valentino,JJ.