Opinion
February 21, 1995
Appeal from the Supreme Court, Kings County (Harkavy, J., Marano, J.).
Ordered that the judgment and amended judgment are affirmed.
The defendant's contention that the People failed to prove his guilt of criminal possession of a weapon in the third degree beyond a reasonable doubt is unpreserved for appellate review (see, CPL 470.05). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 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).
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; People v. Lemmons, 40 N.Y.2d 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 N.Y.2d 921). The court properly instructed the jury regarding the permissive nature of the statutory presumption (see, Ulster County Ct. v. Allen, 442 U.S. 140, 160-161; People v Lemmons, supra; People v. Williams, 136 A.D.2d 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 N.Y.2d 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.