People v. Nelson

5 A.D.3d 134, 772 N.Y.S.2d 509, 2004 N.Y. App. Div. LEXIS 2276

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2004
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Mary Davis, J.), rendered August 6, 1998, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and sentencing him, as a predicate felony offender, to a determinate term of five years imprisonment, unanimously affirmed.

Read as a whole and in the context of its original instruction as well as the four notes from the jury during its deliberations, the court, in its supplemental instructions, did not abandon the principle that the People had the burden of disproving beyond a reasonable doubt the defense of temporary and lawful possession of the handgun which was the subject of the indictment. Nor did it, as urged by defendant, erroneously subdivide the defense into three discrete elements by instructing the jury at one point that the People need only disprove that the defendant did not possess the weapon temporarily, or did not possess the weapon lawfully, or that the defendant used the weapon in a dangerous manner. The charge as a whole conveyed the correct legal standard and provided the jury with suitable guidance in applying the law to the evidence presented at trial.

Nor is there any merit to defendant’s hearsay and constitutional claims regarding the police witnesses’ testimony regarding the 911 call that brought them to the scene. This testimony explained the police conduct in approaching defendant, and the information did not implicate him as one of the three men with guns described in the call. Moreover, the court repeatedly stressed that such testimony was not introduced for the truth of its content. Concur—Buckley, P.J., Andrias, Lerner and Friedman, JJ.