People v. Gatling

222 A.D.2d 606, 635 N.Y.S.2d 273, 1995 N.Y. App. Div. LEXIS 12937

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1995
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brill, J.), rendered April 18, 1994, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant was tried on charges of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree in connection with a shooting death. The trial court also instructed the jury on the lesser-included offense of manslaughter in the first degree. The trial testimony of the People’s witnesses established that the defendant displayed a gun and shot the victim three times, killing him. The jury returned a verdict of guilty on the count of criminal possession of a weapon in the second degree, but acquitted the defendant on the murder and manslaughter counts. The verdict was not objected to at the time it was rendered.

The defendant’s claim that the verdict was repugnant is unpreserved for appellate review (see, People v Stahl, 53 NY2d 1048). In any event, the verdict was not repugnant. By acquitting the defendant of the murder and manslaughter charges, the jury did not necessarily determine that he did not commit one of essential elements of criminal possession of a weapon in the second degree.

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s remaining contention is unpreserved for appellate review. Miller, J. P., Pizzuto, Joy and Goldstein, JJ., concur.