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People v. Banks

Appellate Division of the Supreme Court of New York, First Department
Jan 8, 1991
169 A.D.2d 405 (N.Y. App. Div. 1991)

Opinion

January 8, 1991

Appeal from the Supreme Court, New York County (James Leff, J.).


Defendant, charged with four counts of robbery, was acquitted of robbery but found guilty of criminal possession of a weapon in the third degree. On appeal, this court reversed the conviction and directed a new trial, one Justice dissenting, finding that the court erred in refusing to charge "`temporary and lawful'" possession of the weapon. (See, People v Banks, 155 A.D.2d 347.) The Court of Appeals reversed and remitted to this court pursuant to CPL 470.40 (2) (b), finding that defendant's claim that he had obtained the weapon during an altercation, had concealed it on his person, and had intended to bring the weapon to Queens in order to "throw it down a sewer" was inconsistent with a defense of temporary and lawful possession. ( 76 N.Y.2d 799.)

We now affirm. As all of the evidence, including defendant's trial testimony, indicates that defendant possessed a .38 caliber revolver, and since based upon defendant's own testimony his possession of the weapon was unlawful, defendant's conviction was supported by the weight of legally sufficient evidence.

Concur — Kupferman, J.P., Carro, Rosenberger, Ellerin and Smith, JJ.


Summaries of

People v. Banks

Appellate Division of the Supreme Court of New York, First Department
Jan 8, 1991
169 A.D.2d 405 (N.Y. App. Div. 1991)
Case details for

People v. Banks

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EARL BANKS, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 8, 1991

Citations

169 A.D.2d 405 (N.Y. App. Div. 1991)
564 N.Y.S.2d 136