People v. McCray

30 A.D.3d 443, 815 N.Y.S.2d 826

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered October 29, 2003, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant’s guilt of criminal possession of a weapon in the third degree beyond a reasonable doubt (see People v Contes, 60 NY2d 620 [1983]; Penal Law § 265.02 [4]; People v Albritton, 204 AD2d 651 [1994]; People v Livingston, 171 AD2d 759 [1991]). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]; People v Garafolo, 44 AD2d 86, 88 [1974]; People v Clark, 222 AD2d 446 [1995]).

Although the prosecutor’s comments during summation impermissibly shifted the burden of proof to the nontestifying defendant, the comments were harmless in light of the overwhelming evidence against the defendant (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Dardain, 226 AD2d 551 [1996]; People v Roccaforte, 141 AD2d 775, 776 [1988]). Schmidt, J.E, Skelos, Lunn and Dillon, JJ., concur.