| People v Cook |
| 2021 NY Slip Op 02175 [193 AD3d 760] |
| April 7, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Bonitti Cook, Appellant. |
Paul Skip Laisure, New York, NY (Martin B. Sawyer of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Camille O'HaraGillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DeborahDowling, J.), rendered November 2, 2017, convicting him of criminal possession of a weapon inthe second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconviction of criminal possession of a weapon in the second degree is unpreserved for appellatereview (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. Moreover, upon the exercise of our factual review power (seeCPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The Supreme Court providently exercised its discretion (see CPL 300.50 [1]) indenying the defendant's application to charge criminal possession of a firearm (Penal Law§ 265.01-b) as a lesser included offense of criminal possession of a weapon in thesecond degree (Penal Law § 265.03 [3]). "To establish a charge on a lesser includedoffense, a defendant must show both that the greater crime cannot be committed without havingconcomitantly committed the lesser by the same conduct, and that a reasonable view of theevidence supports a finding that he or she committed the lesser, but not the greater, offense" (People v James, 11 NY3d 886,888 [2008]). Here, the defendant established the first prong of the test (see People v Mahon, 188 AD3d915, 917 [2020]). However, viewing the evidence in the light most favorable to thedefendant (see People v Martin, 59 NY2d 704, 705 [1983]), there was no reasonable viewof the evidence to support a finding that the defendant committed the lesser offense but not thegreater (see People v Stevens, 171AD3d 1106, 1108 [2019]).
The defendant's contention that the Supreme Court erred in declining to instruct the jury ontemporary and lawful possession of a weapon is unpreserved for appellate review, as he failed torequest such a charge at trial (see Peoplev Pena, 100 AD3d 1024, 1024 [2012]). In any event, such a charge was not warrantedbecause even when viewing the evidence in the light most favorable to [*2]the defendant, the defendant's conduct after he gained possession ofthe gun was "utterly at odds with any claim of innocent possession" (People v Banks, 76NY2d 799, 801 [1990] [internal quotation marks omitted]; see People v Snyder, 73 NY2d900, 902 [1989]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions either are without merit or do not require reversal.Chambers, J.P., Hinds-Radix, Duffy and Christopher, JJ., concur.