People v. Dunnigan

270 A.D.2d 861, 705 N.Y.S.2d 912, 2000 N.Y. App. Div. LEXIS 3394

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant failed to preserve for our review his contention that the evidence is legally insufficient to sustain the conviction of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). Defendant made only a general motion to dismiss the indictment at the close of the People’s case and contends for the first time on appeal that the People did not prove beyond a reasonable doubt that the gun was operable (see, People v Restivo, 226 AD2d 1106, lv denied 88 NY2d 883; see also, People v Gray, 86 NY2d 10, 19). In any event, that contention is without merit (see, People v Bleakley, 69 NY2d 490, 495). Because defendant did not object to the jury instructions, he also failed to preserve for our review his contention that County Court erred in failing to instruct the jury on the definition of “operable” (see, People v Robinson, 88 NY2d 1001, 1001-1002), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Niagara County Court, Hannigan, J. — Criminal Possession Weapon, 3rd Degree.) Present — Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.