Opinion
2012-12-28
The PEOPLE of the State of New York, Respondent, v. Barton DEPAUL, Defendant–Appellant.
Appeal from a judgment of the Oneida County Court (William D. Walsh, A.J.), rendered October 18, 2010. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree and menacing in the second degree. Mary R. Humphrey, New Hartford, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Appeal from a judgment of the Oneida County Court (William D. Walsh, A.J.), rendered October 18, 2010. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree and menacing in the second degree.
Mary R. Humphrey, New Hartford, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him following a jury trial of criminal possession a weapon in the third degree (Penal Law § 265.02[1] ) and menacing in the second degree (§ 120.14[1] ), arising from an incident in which defendant pointed a BB gun at a police officer and demanded the officer's money. According to the trial testimony of the officer, the BB gun appeared to be a real handgun and he feared for his life. On appeal, defendant contends that the evidence is legally insufficient to establish that the BB gun was loaded or operable. That contention is unpreserved for our review because defendant's motion for a trial order of dismissal was not specifically directed at that alleged deficiency in the People's proof ( see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, because defendant*908was charged with possessing an “imitation pistol,” the People were not required to prove that the BB gun was loaded or operable. The cases relied upon by defendant are distinguishable because the defendants therein were charged with possessing firearms; it is well settled, however, that a BB gun is not a firearm ( see People v. Wilson, 283 A.D.2d 339, 340, 727 N.Y.S.2d 62,lv. denied 97 N.Y.2d 644, 735 N.Y.S.2d 501, 761 N.E.2d 6;see generally People v. Perez, 93 A.D.3d 1032, 1038 n. 2, 942 N.Y.S.2d 227,lv. denied 19 N.Y.3d 1000, 951 N.Y.S.2d 476, 975 N.E.2d 922).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.