Opinion
June 9, 1995
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Green, J.P., Lawton, Wesley, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second and third degrees (Penal Law § 265.03, 265.02 Penal [4]). Defendant's argument, that there was insufficient proof before the Grand Jury to support a charge of criminal possession of a weapon in the second degree, may not be reviewed on appeal from a judgment based upon legally sufficient evidence (see, CPL 210.30; People v. Johnson, 204 A.D.2d 1024, lv denied 84 N.Y.2d 827). There is no merit to defendant's argument that the proof at trial varied impermissibly from the indictment as amplified by the amended bill of particulars. At trial, the People advanced the theory that, on April 8, 1992, defendant possessed a loaded firearm with the intent to use it unlawfully against certain individuals with whom he had had an earlier altercation. The evidence presented to the Grand Jury supported that theory (cf., People v. Grega, 72 N.Y.2d 489). Supreme Court's instructions to the jury were consistent with that theory. There is no basis, on this record, for the argument advanced by defendant that he was convicted based upon some alternative factual theory not before the Grand Jury. The evidence presented at trial is sufficient to support the jury's determinations that the firearm defendant possessed was loaded and that defendant possessed it with the intent to use it unlawfully against specified individuals. It does not follow that, because the actual use of the firearm by defendant might have been justified, he did not harbor the intent to use the firearm unlawfully prior to the shooting (see, People v. Pons, 68 N.Y.2d 264, 267-268; People v. Bumbury, 194 A.D.2d 735, lv denied 82 N.Y.2d 714).