People v. Kellman

Appellate Division of the Supreme Court of New York

People v. Kellman

2017 NY Slip Op 6887, 154 A.D.3d 410, 60 N.Y.S.3d 814, 2017 N.Y. App. Div. LEXIS 6891

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 3, 2017

Docket545/12 4551 4550

StatusPublished

This text of 2017 NY Slip Op 6887 (People v. Kellman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Kellman, 2017 NY Slip Op 6887, 154 A.D.3d 410, 60 N.Y.S.3d 814, 2017 N.Y. App. Div. LEXIS 6891 (N.Y. Ct. App. 2017).

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Opinion

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J., at pretrial motions; Daniel P. Conviser, J., at jury trial and sentencing), rendered June 25, 2013, as amended January 13, 2016, convicting defendant of criminal possession of a weapon in the third degree, and sentencing her, as a second felony offender, to a term of two to four years, unanimously affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50 (5).

Review of defendant’s challenge to the sufficiency of the evidence presented to the grand jury is foreclosed by statute (CPL 210.30 [6]). To the extent defendant is also claiming that the indictment was facially insufficient, that claim is without merit.

Defendant’s challenge to the sufficiency of the trial evidence is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that the evidence amply established that the weapon recovered from defendant met the definition of a stun gun, in that it was a “device designed primarily as a weapon, the purpose of which is to stun, cause mental disorientation, knock out or paralyze a person by passing a high voltage electrical shock to such person” (Penal Law § 265.00 [15-c]).

Concur — Sweeny, J.P., Moskowitz, Kahn and Gesmer, JJ.

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Judgment, Supreme Court, New York County (Bonnie G. Wittner, J., at pretrial motions; Daniel P. Conviser, J., at jury trial and sentencing), rendered June 25, 2013, as amended January 13, 2016, convicting defendant of criminal possession of a weapon in the third degree, and sentencing her, as a second felony offender, to a term of two to four years, unanimously affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50 (5).

Review of defendant’s challenge to the sufficiency of the evidence presented to the grand jury is foreclosed by statute (CPL 210.30 [6]). To the extent defendant is also claiming that the indictment was facially insufficient, that claim is without merit.

Defendant’s challenge to the sufficiency of the trial evidence is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that the evidence amply established that the weapon recovered from defendant met the definition of a stun gun, in that it was a “device designed primarily as a weapon, the purpose of which is to stun, cause mental disorientation, knock out or paralyze a person by passing a high voltage electrical shock to such person” (Penal Law § 265.00 [15-c]).

Concur — Sweeny, J.P., Moskowitz, Kahn and Gesmer, JJ.

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Bluebook (online)

2017 NY Slip Op 6887, 154 A.D.3d 410, 60 N.Y.S.3d 814, 2017 N.Y. App. Div. LEXIS 6891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kellman-nyappdiv-2017.

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