People v. Dilone

Appellate Division of the Supreme Court of New York

People v. Dilone

60 A.D.3d 531, 874 N.Y.S.2d 374

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 19, 2009

StatusPublished

This text of 60 A.D.3d 531 (People v. Dilone) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Dilone, 60 A.D.3d 531, 874 N.Y.S.2d 374 (N.Y. Ct. App. 2009).

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Opinion

Judgment, Supreme Court, New York County (Carol Berk-man, J), rendered December 20, 2006, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms of nine and seven years, respectively, unanimously affirmed.

Defendant’s challenge to the sufficiency of the evidence sup[532]*532porting his conviction of second-degree weapon possession is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also find that the evidence of defendant’s intent to use the weapon unlawfully was legally sufficient in light of the statutory presumption of unlawful intent (Penal Law § 265.15 [4]), which the court properly submitted to the jury. We further find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]).

The court properly exercised its discretion in denying defendant’s mistrial motion, made on the basis of a portion of the prosecutor’s summation that allegedly misstated the law. Any possible confusion in this regard was prevented by the court’s correct and thorough jury instruction on the particular subject at issue.

We decline to vacate the third-degree possession conviction in the interest of justice.

We perceive no basis for reducing the sentence. Concur— Tom, J.P., Saxe, Sweeny, Acosta and Freedman, JJ.

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Judgment, Supreme Court, New York County (Carol Berk-man, J), rendered December 20, 2006, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms of nine and seven years, respectively, unanimously affirmed.

Defendant’s challenge to the sufficiency of the evidence sup[532]*532porting his conviction of second-degree weapon possession is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also find that the evidence of defendant’s intent to use the weapon unlawfully was legally sufficient in light of the statutory presumption of unlawful intent (Penal Law § 265.15 [4]), which the court properly submitted to the jury. We further find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]).

The court properly exercised its discretion in denying defendant’s mistrial motion, made on the basis of a portion of the prosecutor’s summation that allegedly misstated the law. Any possible confusion in this regard was prevented by the court’s correct and thorough jury instruction on the particular subject at issue.

We decline to vacate the third-degree possession conviction in the interest of justice.

We perceive no basis for reducing the sentence. Concur— Tom, J.P., Saxe, Sweeny, Acosta and Freedman, JJ.

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Bluebook (online)

60 A.D.3d 531, 874 N.Y.S.2d 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dilone-nyappdiv-2009.

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