People v. O'Brien

Appellate Division of the Supreme Court of New York

People v. O'Brien

212 A.D.2d 741, 622 N.Y.S.2d 782

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

DecidedFebruary 21, 1995

StatusPublished

Cited by11 cases

This text of 212 A.D.2d 741 (People v. O'Brien) 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. O'Brien, 212 A.D.2d 741, 622 N.Y.S.2d 782 (N.Y. Ct. App. 1995).

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Opinion

—Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Harkavy, J.), rendered March 30, 1992, convicting him of criminal possession of a weapon in the third degree under Indictment No. 265/91, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered March 30, 1992, revoking a sentence of probation previously imposed by the same court (Maraño, J.), upon a finding that he had violated a condition thereof, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a weapon in the third degree under Indictment No. 7214/87.

Ordered that the judgment and amended judgment are affirmed.

The defendant’s contention that the People failed to prove [742]*742his guilt of criminal possession of a weapon in the third degree beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. 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 (CPL 470.15 [5]).

Based on the facts of this case, it was proper for the jury to apply the so-called automobile presumption (see, Penal Law § 265.15 [3]; People v Lemmons, 40 NY2d 505). The "upon the person” exception to the statutory presumption did not apply to the present case because there was no clear-cut evidence that the weapon was found on another’s person or in another’s exclusive possession prior to the defendant’s arrest (see, People v Velez, 83 NY2d 921). The court properly instructed the jury regarding the permissive nature of the statutory presumption (see, Ulster County Ct. v Allen, 442 US 140, 160-161; People v Lemmons, supra; People v Williams, 136 AD2d 132).

The court did not err in failing to give the jury a circumstantial evidence charge since the defendant’s conviction was based on both direct and circumstantial evidence (see, People v Daddona, 81 NY2d 990).

We have examined the defendant’s remaining contentions and find them to be without merit. O’Brien, J. P., Lawrence, Krausman and Florio, JJ., concur.

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—Appeal by the defendant from (1) a judgment of the Supreme Court, Kings County (Harkavy, J.), rendered March 30, 1992, convicting him of criminal possession of a weapon in the third degree under Indictment No. 265/91, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court, also rendered March 30, 1992, revoking a sentence of probation previously imposed by the same court (Maraño, J.), upon a finding that he had violated a condition thereof, and imposing a sentence of imprisonment upon his previous conviction of criminal possession of a weapon in the third degree under Indictment No. 7214/87.

Ordered that the judgment and amended judgment are affirmed.

The defendant’s contention that the People failed to prove [742]*742his guilt of criminal possession of a weapon in the third degree beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. 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 (CPL 470.15 [5]).

Based on the facts of this case, it was proper for the jury to apply the so-called automobile presumption (see, Penal Law § 265.15 [3]; People v Lemmons, 40 NY2d 505). The "upon the person” exception to the statutory presumption did not apply to the present case because there was no clear-cut evidence that the weapon was found on another’s person or in another’s exclusive possession prior to the defendant’s arrest (see, People v Velez, 83 NY2d 921). The court properly instructed the jury regarding the permissive nature of the statutory presumption (see, Ulster County Ct. v Allen, 442 US 140, 160-161; People v Lemmons, supra; People v Williams, 136 AD2d 132).

The court did not err in failing to give the jury a circumstantial evidence charge since the defendant’s conviction was based on both direct and circumstantial evidence (see, People v Daddona, 81 NY2d 990).

We have examined the defendant’s remaining contentions and find them to be without merit. O’Brien, J. P., Lawrence, Krausman and Florio, JJ., concur.

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212 A.D.2d 741, 622 N.Y.S.2d 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-obrien-nyappdiv-1995.

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