Opinion
575 KA 14–01963
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Jerry L. ELLINGTON, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment convicting him, upon a jury verdict, of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ), defendant contends that Supreme Court erred in denying his request to instruct the jury on the defense of temporary innocent possession of the handgun. We reject that contention. In order to establish entitlement to such a charge, " ‘there must be proof in the record showing a legal excuse for having the weapon in [one's] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was not] used in a dangerous manner’ " ( People v. Banks, 76 N.Y.2d 799, 801, 559 N.Y.S.2d 959, 559 N.E.2d 653 [1990], quoting People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372 [1980] ; see People v. Holes, 118 A.D.3d 1466, 1467, 988 N.Y.S.2d 375 [4th Dept. 2014] ). Viewing the evidence in the light most favorable to defendant (see People v. Farnsworth, 65 N.Y.2d 734, 735, 492 N.Y.S.2d 12, 481 N.E.2d 552 [1985] ; People v. Sinkler, 112 A.D.3d 1359, 1360, 979 N.Y.S.2d 209 [4th Dept. 2013], lv denied 22 N.Y.3d 1159, 984 N.Y.S.2d 643, 7 N.E.3d 1131 [2014] ), we conclude that " ‘there was no reasonable view of the evidence upon which the jury could have found that the defendant's possession was innocent’ " ( People v. Ward, 104 A.D.3d 1323, 1324, 960 N.Y.S.2d 839 [4th Dept. 2013], lv denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1286 [2013] ). Rather, defendant's conduct was "utterly at odds with any claim of innocent possession" ( People v. McCoy, 46 A.D.3d 1348, 1350, 848 N.Y.S.2d 505 [4th Dept. 2007], lv denied 10 N.Y.3d 813, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008] [internal quotation marks omitted]; see People v. Hicks, 110 A.D.3d 1488, 1488, 972 N.Y.S.2d 800 [4th Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ; People v. Smith, 63 A.D.3d 1655, 1655, 879 N.Y.S.2d 652 [4th Dept. 2009], lv denied 13 N.Y.3d 839, 890 N.Y.S.2d 455, 918 N.E.2d 970 [2009] ; People v. Sheehan, 41 A.D.3d 335, 335, 838 N.Y.S.2d 83 [1st Dept. 2007], lv denied 9 N.Y.3d 993, 848 N.Y.S.2d 611, 878 N.E.2d 1027 [2007] ). Contrary to defendant's further contention, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.