People v. Herring

282 A.D.2d 546, 722 N.Y.S.2d 887, 2001 N.Y. App. Div. LEXIS 3610

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered April 8, 1999, 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, after claiming self defense at trial, was acquitted of assault in the first degree. However, he was convicted of criminal possession of a weapon in the second degree. The defendant’s claim concerning the defense of justification is unpreserved for appellate review. In any event, contrary to the defendant’s contention, although justification can be a defense to a prosecution based on assaultive behavior, it cannot be a defense to the crime of criminal possession of a weapon (see, People v Pons, 68 NY2d 264; People v Carrion, 136 AD2d 649). Therefore, viewing the evidence in the 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.

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80). Krausman, J. P., Friedmann, Feuerstein and Smith, JJ., concur.