Opinion
685 Ind. No. 346/12 Case No. 2014–2526
10-03-2023
The PEOPLE of the State of New York, Respondent, v. Harold BERROCAL, Defendant–Appellant.
Twyla Carter, The Legal Aid Society, New York (Paul Weiner of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Katherine A. Triffon of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Paul Weiner of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Katherine A. Triffon of counsel), for respondent.
Oing, J.P., Friedman, Kennedy, Shulman, Pitt–Burke, JJ.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered November 22, 2013, convicting defendant, after a jury trial, of criminal possession of a weapon in the fourth degree, and sentencing him to three years' probation, unanimously affirmed. The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Defendant's acquittals of attempted murder, assault, and attempted assault charges do not warrant overturning the conviction of criminal possession of a weapon in the fourth degree ( Penal Law § 265.01[2] ) based on the evidence that he drew two long knives and pointed them at his coworkers in their workplace (see People v. Guzman, 266 A.D.2d 37, 38, 697 N.Y.S.2d 623 [1st Dept. 1999], lv denied 94 N.Y.2d 920, 708 N.Y.S.2d 359, 729 N.E.2d 1158 [2000] ; People v. Russell, 227 A.D.2d 232, 642 N.Y.S.2d 651 [1st Dept. 1996], lv denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355 [1996] ). "Defendant's possession of the weapon[s] with intent to use [them] unlawfully against another was ... completed by defendant, at the latest, when he drew the weapon[s] to intimidate" ( People v. Perez, 278 A.D.2d 2, 3, 717 N.Y.S.2d 135 [1st Dept. 2000], lv denied 96 N.Y.2d 804, 726 N.Y.S.2d 382, 750 N.E.2d 84 [2001] ). We note that defendant raised a justification defense to the other charges, but justification is not a defense to weapon possession (see People v. Pons, 68 N.Y.2d 264, 508 N.Y.S.2d 403, 501 N.E.2d 11 [1986] ). It does not avail defendant to invoke the Second Amendment in support of his weight of the evidence claim (see generally McDonald v. City of Chicago, Ill., 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 [2010] ["the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose"] [internal quotation marks omitted]).