| People v Reel |
| 2017 NY Slip Op 03973 [150 AD3d 1028] |
| May 17, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Aaron Reel, Appellant. |
Lynn W. L. Fahey, New York, NY (Anders Nelson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lopez, J.),rendered August 6, 2015, convicting him of criminal possession of a weapon in the seconddegree and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied the defendant'srequest to charge the jury with the defense of temporary and lawful possession. " '[T]otrigger the right [to a charge of temporary and lawful possession] there must be proof in therecord showing a legal excuse for having the weapon in [the defendant's] possession as well asfacts tending to establish that, once possession has been obtained, the weapon had not been usedin a dangerous manner' " (People v Banks, 76 NY2d 799, 801 [1990], quotingPeople v Williams, 50 NY2d 1043, 1045 [1980]). However, a defendant is not entitled tothe charge where the evidence presented is "utterly at odds with any claim of innocentpossession" (People v Banks, 76 NY2d at 801 [internal quotation marks omitted]; seePeople v Snyder, 73 NY2d 900, 902 [1989]; People v Williams, 50 NY2d at 1045;People v Smith, 54 AD3d 421,421 [2008]). Here, viewing the evidence in the light most favorable to the defendant (see People v Zona, 14 NY3d 488,493 [2010]; People v Shamsiddeen,98 AD3d 694, 695 [2012]), although the gun was initially "thrust" upon the defendant'sperson, the defendant's own testimony established that he nonetheless accepted and retainedpossession of the gun and proceeded to conceal it on his person. He did all of this in anticipationof receiving drugs and discharging a debt owed to his drug dealer. This evidence was "utterly atodds with any claim of innocent possession" (People v Banks, 76 NY2d at 801 [internalquotation marks omitted]; see People v Snyder, 73 NY2d at 902; People vWilliams, 50 NY2d at 1045; People v Smith, 54 AD3d at 421).
The defendant's contention that the prosecutor's comments during summation constitutedreversible error is unpreserved for appellate review because he failed to object at trial to thechallenged remarks (see CPL 470.05 [2]; People v Flanagan, 132 AD3d 693, 694 [2015], affd 28NY3d 644 [2017]). In any event, the challenged remarks were fair comment on the evidence(see People v Ashwal, 39 NY2d 105, 109-110 [1976]), responsive to arguments andtheories presented in the defense summation (see People v Galloway, 54 NY2d 396[1981]; People v Moore, 29 AD3d825, 825-826 [2006]), or constituted harmless error (see People v Crimmins, 36NY2d 230, 241-242 [1975]; People v Hill, 286 AD2d 777, 778 [2001]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention is without merit. Chambers, J.P., Sgroi, Duffy andBarros, JJ., concur.