| People v Jackson |
| 2018 NY Slip Op 04204 [162 AD3d 1567] |
| June 8, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Tommy Jackson, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Sara A. Goldfarb of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered June24, 2015. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
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]).Contrary to defendant's contention, upon viewing the evidence in the light most favorable to thePeople, we conclude that the evidence is legally sufficient to establish that he possessed a loadedfirearm outside of his home or place of business (see generally People v Danielson, 9 NY3d 342, 349 [2007];People v Bleakley, 69 NY2d 490, 495 [1987]). A police officer and a civilian ride-alongpassenger testified that they observed defendant walk away and turn his body upon seeing thepolice vehicle in which they were riding, and they subsequently observed defendant reach towardhis waistband area and make a throwing motion with his right arm. Moments later, the policeofficer retrieved a handgun from the area where any object thrown by defendant would havelanded (see People v Recore, 56AD3d 1233, 1234 [4th Dept 2008], lv denied 12 NY3d 761 [2009]; People v Reed, 45 AD3d 1333,1333-1334 [4th Dept 2007], lv denied 10 NY3d 843 [2008]). "Despite the lack offorensic evidence, the People supplied the necessary proof through circumstantial evidence, i.e.,eyewitness testimony and surrounding circumstances" (People v Butler, 148 AD3d 1540, 1540 [4th Dept 2017], lvdenied 29 NY3d 1090 [2017] [internal quotation marks omitted]). We reject defendant'sfurther contention that the verdict is against the weight of the evidence. Even assuming,arguendo, that a different verdict would not have been unreasonable, we conclude that, viewingthe evidence in light of the elements of the crime as charged to the jury (see Danielson, 9NY3d at 349), it cannot be said that the jury failed to give the evidence the weight it should beaccorded (see generally Bleakley, 69 NY2d at 495).
Defendant failed to preserve for our review his contention that, in determining the sentenceto be imposed, the court penalized him for exercising his right to a jury trial, inasmuch asdefendant did not raise that contention at sentencing (see People v Stubinger, 87 AD3d 1316, 1317 [4th Dept 2011],lv denied 18 NY3d 862 [2011]). In any event, that contention is without merit. "[T]hemere fact that a sentence imposed after trial is greater than that offered in connection with pleanegotiations is not proof that defendant was punished for asserting his right to trial. . . , and there is no indication in the record before us that the sentencing court actedin a vindictive manner based on defendant's exercise of the right to a trial" (id. [internalquotation marks omitted]). Finally, the sentence is not unduly harsh or severe.Present—Whalen, P.J., Smith, Peradotto, DeJoseph and Troutman, JJ.