People v. Powell

177 A.D.2d 518

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered March 30, 1989, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that he was prejudiced by the court’s instructions to the jury, which differed from the theory of the prosecution’s case as stated in the bill of particulars. That part of the bill of particulars relevant to the count charging the defendant with criminal possession of a weapon in the second degree specified that he intended to use his weapon unlawfully against police officers. The court’s charge permitted the jury to find the defendant guilty if it found beyond a reasonable doubt that the defendant intended to use the weapon unlawfully "against another”. The court’s charge did not prejudice the defendant since he failed to demonstrate that he was forced to forego a viable defense or was otherwise misled by reason of the court’s charge (see, People v Cassidy, 133 AD2d 374, 377). Moreover, the proof at trial established only that the defendant possessed a weapon with the intent to use it unlawfully against police officers (cf., People v Colon, 139 Misc 2d 1053, 1061-1062). Sullivan, J. P., Balletta, Ritter and Copertino, JJ., concur.