People v. Higdon

162 A.D.2d 957, 557 N.Y.S.2d 778, 1990 N.Y. App. Div. LEXIS 9681

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1990
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Defendant’s conviction of criminal possession of a weapon in the second degree (Penal Law § 265.03) is supported by legally sufficient evidence (see, People v Pons, 68 NY2d 264; People v Carrion, 136 AD2d 649, Iv denied 71 NY2d 967; People v [Mark] Taylor, 121 AD2d 581, Iv denied 68 NY2d 817). The trier of fact properly could have inferred the requisite intent from the circumstances surrounding the shooting (see, People v Taylor, supra, at 582; People v Evans, 106 AD2d 527). Further, where one who possesses a loaded firearm is not licensed to do so, possession of that firearm is presumptive evidence of an intent to use it unlawfully against another (see, Penal Law § 265.15 [4]; People v Wooten, 149 AD2d 751, Iv denied 74 NY2d 822; People v Carrion, supra). Additionally, we conclude that the verdicts were not repugnant. Acquittal of the crimes of attempted second degree murder (Penal Law §§ 110.00, 125.25 [1]) and second degree assault (Penal Law § 120.05 [2]) was not inconsistent with conviction of criminal possession of a weapon in the second degree (Penal Law § 265.03). Attempted murder and second degree assault require an intent to kill and injure, respectively, whereas criminal possession of a weapon in the second degree requires only an intent to use the weapon unlawfully against another. Finally, defendant’s sentence was not harsh and excessive (see, People v Farrar, 52 NY2d 302, 305). (Appeal from judgment of Monroe County Court, Celli, J.—criminal possession of weapon, second degree.) Present—Dillon, P. J., Denman, Pine, Lawton and Davis, JJ.