People v. Bumbury

194 A.D.2d 735, 599 N.Y.S.2d 826

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 1993
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barasch, J.), rendered December 16, 1991, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to support the defendant’s conviction beyond a reasonable doubt.

We note that under Penal Law § 265.15 (4), where a possessor is not licensed to carry the firearm in question, possession of a loaded firearm is presumptive evidence of possessing the weapon with intent to use it unlawfully against another. This statutory presumption allowed the jury to infer such intent from all of the circumstances of the case (see, People v Wooten, 149 AD2d 751; People v Carrion, 136 AD2d 649; People v Hassan, 57 AD2d 594, 595).

Further, while the defendant claimed that he shot the victim in self-defense and was acquitted of the murder and manslaughter charges, the charge of criminal possession of a weapon in the second degree is based upon the defendant’s possession of the loaded firearm, not its lawful use in self-defense, and "it does not follow that because defendant was justified in the actual shooting of the weapon under the particular circumstances existing at that moment, he lacked the intent to use the weapon unlawfully during the continuum of time that he possessed it prior to the shooting” (People v Pons, 68 NY2d 264, 267-268; People v Carrion, supra).

We further find that the sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). Rosenblatt, J. P., Copertino, Santucci and Joy, JJ., concur.