Opinion
July 9, 1990
Appeal from the Supreme Court, Queens County (Naro, J.).
Ordered that the judgment is affirmed.
The defendant asserts that the verdict rejecting his affirmative defense that the gun he used to commit the robberies was inoperable was against the weight of the evidence. We disagree. The defendant has the burden of establishing the affirmative defense by a preponderance of the evidence (Penal Law § 25.00). Here, the evidence was insufficient to establish that the gun was inoperable at the time of the crime (see, e.g., People v. Cotarelo, 71 N.Y.2d 941). At best, the evidence established only that the weapon was inoperable five days after the crime. Indeed, the weapon, which showed evidence of having been fired, was recovered along with three cartridges from the car the defendant had been driving on the date of his arrest. Mangano, P.J., Bracken, Rubin and Rosenblatt, JJ., concur.