People v. Berrocal

2023 NY Slip Op 04938

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2023
• Docket: Ind. No. 346/12 Appeal No. 685 Case No. 2014-2526
• Status: Published

Opinion

People v Berrocal (2023 NY Slip Op 04938)

People v Berrocal

2023 NY Slip Op 04938

Decided on October 03, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 03, 2023
Before: Oing, J.P., Friedman, Kennedy, Shulman, Pitt-Burke, JJ.

Ind. No. 346/12 Appeal No. 685 Case No. 2014-2526

[*1]The People of the State of New York, Respondent,

v

Harold Berrocal, Defendant-Appellant.

Twyla Carter, The Legal Aid Society, New York (Paul Weiner of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Katherine A. Triffon of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered November 22, 2013, convicting defendant, after a jury trial, of criminal possession of a weapon in the fourth degree, and sentencing him to three years' probation, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). Defendant's acquittals of attempted murder, assault, and attempted assault charges do not warrant overturning the conviction of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) based on the evidence that he drew two long knives and pointed them at his coworkers in their workplace (see People v Guzman, 266 AD2d 37, 38 [1st Dept 1999], lv denied 94 NY2d 920 [2000]; People v Russell, 227 AD2d 232 [1st Dept 1996], lv denied 88 NY2d 969 [1996]). "Defendant's possession of the weapon[s] with intent to use [them] unlawfully against another was . . . completed by defendant, at the latest, when he drew the weapon[s] to intimidate" (People v Perez, 278 AD2d 2, 3 [1st Dept 2000], lv denied 96 NY2d 804 [2001]). We note that defendant raised a justification defense to the other charges, but justification is not a defense to weapon possession (see People v Pons, 68 NY2d 264 [1986]). It does not avail defendant to invoke the Second Amendment in support of his weight of the evidence claim (see generally McDonald v City of Chicago, Ill., 561 US 742, 786 [2010] ["the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose"] [internal quotation marks omitted]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 3, 2023