People v. Hemmings

304 A.D.2d 502, 758 N.Y.S.2d 333, 2003 N.Y. App. Div. LEXIS 4501

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 2003
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered March 11, 2002, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him to a term of eight years, unanimously affirmed.

The verdict was based upon legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility. The jury’s finding that defendant possessed a weapon with intent to use unlawfully against another was not undermined by his acquittal of the homicide charges (see People v Rayam, 94 NY2d 557 [2000]). Moreover, there was ample evidence warranting the conclusion that defendant had the requisite intent while looking for the deceased outside of his apartment building (see People v Pons, 68 NY2d 264 [1986]; People v Guzman, 266 AD2d 37 [1999], lv denied 94 NY2d 920 [2000]).

The court properly charged the jury that justification was not a defense to the weapon possession counts (see People v Pons, supra). The main and supplemental charges did not create any confusion as to the requisite intent to use the weapon unlawfully.

The court properly exercised its discretion in permitting statements at sentencing from persons who did not qualify as “victims” under CPL 380.50 (2) in view of the acquittals on the homicide counts (see People v Rivers, 262 AD2d 108 [1999], lv denied 94 NY2d 828 [1999]). There was no evidence that the court was improperly persuaded by these statements, given the court’s statement that it was bound by the verdict. The record does not establish that defendant’s sentence was based on any improper criteria and we perceive no basis for reducing the sentence. Concur — Nardelli, J.P., Andrias, Sullivan, Rosenberger and Wallach, JJ.