People v. Gillespie

168 A.D.2d 567

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1990
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered March 1, 1989, 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.

Viewing the evidence in a light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

We find no merit to the defendant’s contention that the People failed to prove that he ever intended to use the weapon unlawfully against another. Under Penal Law § 265.15 (4), if the possessor is not licensed to carry the firearm in question, mere possession of a loaded firearm is presumptive evidence of possession of the weapon with an intent to use it unlawfully against another. This statutory presumption allowed the jury to infer such intent (see, People v Wooten, 149 AD2d 751; People v Evans, 106 AD2d 527). Further, while there was evidence that the underlying shooting was accidental, the charge of criminal possession of a weapon in the second degree is not based upon the nature of its subsequent use (see, People v Pons, 68 NY2d 264).

The defendant’s remaining contentions are unpreserved for appellate review (see, CPL 470.05 [2]; People v Martinez, 153 AD2d 957) and we decline to review them in the exercise of our interest of justice jurisdiction. Thompson, J. P., Lawrence, Kunzeman and Rosenblatt, JJ., concur.