Opinion
February 3, 1995
Appeal from the Supreme Court, Erie County, Doyle, J.
Present — Green, J.P., Pine, Wesley, Davis and Boehm, JJ.
Order unanimously reversed on the law, motion denied, verdict reinstated and matter remitted to Supreme Court for sentencing. Memorandum: The jury acquitted defendant of the top two counts of the indictment, charging manslaughter in the first and second degrees as a result of the shooting of defendant's fiancee. It found defendant guilty, however, of criminal possession of a weapon in the third degree. The trial court erred in granting defendant's motion for a trial order of dismissal on the criminal possession count (see, CPL 290.10). Such motion may be granted only if the trial evidence is not legally sufficient to establish the offense charged (see, People v. Singh, 191 A.D.2d 731, lv denied 81 N.Y.2d 1020; People v. Lynch, 116 A.D.2d 56, 62). Evidence that defendant, who admitted that he had been previously convicted of a crime, engaged in a heated argument with his neighbor, met the neighbor armed with a loaded .22 caliber rifle, pointed the rifle at his neighbor's head and threatened to "blow [his] damn head off" is sufficient to support the charge of criminal possession of a weapon in the third degree (see, Penal Law § 265.02; § 265.01 [2]; People v. Bumbury, 194 A.D.2d 735, lv denied 82 N.Y.2d 714).