People v. Howard

270 A.D.2d 117, 704 N.Y.S.2d 473, 2000 N.Y. App. Div. LEXIS 2864

Opinion

—Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered October 15, 1998, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 7V2 to 15 years and 2 to 4 years, respectively, unanimously affirmed.

The verdict regarding the second-degree weapon possession count was based on legally sufficient evidence and was not against the weight of the evidence. Possession of an unlicensed, loaded firearm is presumptive evidence of intent to use it unlawfully against another (Penal Law § 265.15 [4]; People v Gibbs, 254 AD2d 209, lv denied 92 NY2d 1049). A jury is permitted “to infer such intent from all the circumstances of the case” (supra, at 209). The jury had an ample basis upon which to apply the statutory presumption. We see no reason to disturb the jury’s determinations concerning credibility.

To the extent that summation comments by the prosecutor could be viewed as inviting the jury to treat as evidence in chief certain evidence that had been admitted for impeachment only, we conclude that the court’s curative actions prevented any prejudice.

We perceive no abuse of sentencing discretion.

Defendant’s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur — Williams, J. P., Ellerin, Rubin and Saxe, JJ.