| People v Graham |
| 2017 NY Slip Op 02175 [148 AD3d 1517] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v CliffordGraham, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (John J. Gilsenan of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered September 18, 2015. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a weapon in the second degree and endangering the welfare of achild.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand as a matter of discretion in the interest of justice and the indictment is dismissed withoutprejudice to the People to re-present any appropriate charges under counts one and eight of theindictment to another grand jury.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) andendangering the welfare of a child (§ 260.10 [1]). Viewing the evidence in light ofthe elements of the crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). Because defendant did not renew his motionfor a trial order of dismissal after presenting evidence, he failed to preserve for our review hiscontention that the verdict is not supported by legally sufficient evidence (see People vHines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, thatcontention is without merit (see generally Bleakley, 69 NY2d at 495).
We agree with defendant, however, that reversal is required because Supreme Court erred indenying his request for a jury instruction on the defense of temporary innocent possession of thehandgun. In order for a defendant to be entitled to such an instruction, "there must be proof in therecord showing a legal excuse for having the weapon in [one's] possession as well as factstending to establish that, once possession [was] obtained, the weapon [was not] used in adangerous manner" (People v Williams, 50 NY2d 1043, 1045 [1980]; see People vBanks, 76 NY2d 799, 801 [1990]). Here, there were such facts. Defendant testified that hebriefly struggled with a man who threatened him with a gun in front of his wife's residence and,in the struggle, the gun fell to the ground. According to defendant's testimony, after the assailantfled the scene, defendant picked up the gun from the street and immediately handed it to his wife,who then brought it into the home and hid it in the bedroom. The police later discovered the gun,hidden in a women's purse in a bedroom closet, during a search of the home after beingdispatched to that location to investigate a domestic violence report. That testimony was not"utterly at odds with [any] claim of innocent possession" (People v Robinson, 63 AD3d 1634, 1635 [2009], lv denied13 NY3d 799 [2009] [internal quotation marks omitted]), and we thus conclude that therewere sufficient facts for the jury to conclude that defendant's possession of the gun wastemporary and lawful (see People v Hayes, 55 AD2d 812, 812 [1976]; People vSingleteary, 54 AD2d 1088, 1088 [1976]; see also People v Holes, 118 AD3d 1466, 1467-1468 [2014]).
Defendant further contends that reversal is also required on the ground that the integrity ofthe grand jury proceeding was impaired because the prosecutor failed to instruct the grand juryconcerning the defense of temporary innocent possession of a weapon. Although defendant failedto preserve that contention for our review inasmuch as he did not move to dismiss the indictmenton that specific ground (see CPL 470.05 [2]; People v Beyor, 272 AD2d 929, 930[2000], lv denied 95 NY2d 832 [2000]), we nevertheless exercise our power to review itas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We agree withdefendant that the integrity of the grand jury proceeding was impaired, and we thus dismiss thetwo counts of the indictment of which defendant was convicted, without prejudice to the Peopleto re-present any appropriate charges under those counts to another grand jury (see People v Connolly, 63 AD3d1703, 1704-1705 [2009]). The prosecutor is required to instruct the grand jury on the lawwith respect to matters before it (see CPL 190.25 [6]). If the prosecutor fails to instructthe grand jury on a defense that would eliminate a needless or unfounded prosecution, theproceeding is defective, mandating dismissal of the indictment (see CPL 210.35 [5];People v Valles, 62 NY2d 36, 38-39 [1984]). Under the circumstances of this case, aninstruction on the defense of temporary and lawful possession was warranted, and theprosecutor's failure to provide that instruction impaired the integrity of the grand jury proceeding(see CPL 210.35 [5]; People vGrant, 113 AD3d 875, 876 [2014]).
In light of our decision, we do not address defendant's remaining contentions.Present—Centra, J.P., Peradotto, Carni and Lindley, JJ.