People v. Gonzalez

104 A.D.2d 1007, 480 N.Y.S.2d 776, 1984 N.Y. App. Div. LEXIS 20440

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Queens County (Lakritz, J.), rendered April 19,1982, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Contrary to defendant’s contention on appeal, the Trial Judge did not err in denying his motion to dismiss based upon the People’s failure to prove a prima facie case of criminal possession of a weapon in the third degree. Eyewitness testimony set forth the requisite elements of knowing possession of a loaded firearm (Penal Law, § 265.02, subd [4]; People v Cohen, 57 AD2d 790). Nor was it error for the Trial Judge to deny defendant’s request for a missing witness charge; potential witnesses were not under the influence or control of the People so as to trigger the need for such instructions (People v Dillard, 96 AD2d 112; People v Alamo, 63 AD2d 6). Finally, defendant’s sentence of five years’ probation is not harsh or excessive in light of the seven-year maximum term of imprisonment which he could have received (Penal Law, § 70.00, subd 2, par [d]). Thompson, J. P., Weinstein, Rubin and Lawrence, JJ., concur.