Opinion
2017–13019 Ind. No. 7125/15
04-07-2021
The PEOPLE, etc., respondent, v. Bonitti COOK, appellant.
Paul Skip Laisure, New York, N.Y. (Martin B. Sawyer of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Martin B. Sawyer of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'Hara Gillespie of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Deborah Dowling, J.), rendered November 2, 2017, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction of criminal possession of a weapon in the second degree is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), 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 (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The Supreme Court providently exercised its discretion (see CPL 300.50[1] ) in denying the defendant's application to charge criminal possession of a firearm ( Penal Law § 265.01–b ) as a lesser included offense of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). "To establish a charge on a lesser included offense, a defendant must show both that the greater crime cannot be committed without having concomitantly committed the lesser by the same conduct, and that a reasonable view of the evidence supports a finding that he or she committed the lesser, but not the greater, offense" ( People v. James, 11 N.Y.3d 886, 888, 874 N.Y.S.2d 864, 903 N.E.2d 261 ). Here, the defendant established the first prong of the test (see People v. Mahon, 188 A.D.3d 915, 917, 135 N.Y.S.3d 406 ). However, viewing the evidence in the light most favorable to the defendant (see People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225 ), there was no reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater (see People v. Stevens, 171 A.D.3d 1106, 1108, 98 N.Y.S.3d 239 ).
The defendant's contention that the Supreme Court erred in declining to instruct the jury on temporary and lawful possession of a weapon is unpreserved for appellate review, as he failed to request such a charge at trial (see People v. Pena, 100 A.D.3d 1024, 1024, 955 N.Y.S.2d 157 ). In any event, such a charge was not warranted because even when viewing the evidence in the light most favorable to the defendant, the defendant's conduct after he gained possession of the gun was "utterly at odds with any claim of innocent possession" ( People v. Banks, 76 N.Y.2d 799, 801, 559 N.Y.S.2d 959, 559 N.E.2d 653 [internal quotation marks omitted]; see People v. Snyder, 73 N.Y.2d 900, 902, 539 N.Y.S.2d 285, 536 N.E.2d 614 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contentions either are without merit or do not require reversal.
CHAMBERS, J.P., HINDS–RADIX, DUFFY and CHRISTOPHER, JJ., concur.