Opinion
June 22, 1990
Appeal from the Monroe County Court, Celli, J.
Present — Dillon, P.J., Denman, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's conviction of criminal possession of a weapon in the second degree (Penal Law § 265.03) is supported by legally sufficient evidence (see, People v Pons, 68 N.Y.2d 264; People v. Carrion, 136 A.D.2d 649, lv denied 71 N.Y.2d 967; People v. [Mark] Taylor, 121 A.D.2d 581, lv denied 68 N.Y.2d 817). The trier of fact properly could have inferred the requisite intent from the circumstances surrounding the shooting (see, People v. Taylor, supra, at 582; People v. Evans, 106 A.D.2d 527). Further, where one who possesses a loaded firearm is not licensed to do so, possession of that firearm is presumptive evidence of an intent to use it unlawfully against another (see, Penal Law § 265.15; People v. Wooten, 149 A.D.2d 751, lv denied 74 N.Y.2d 822; People v. Carrion, supra). Additionally, we conclude that the verdicts were not repugnant. Acquittal of the crimes of attempted second degree murder (Penal Law § 110.00, 125.25 Penal [1]) and second degree assault (Penal Law § 120.05) was not inconsistent with conviction of criminal possession of a weapon in the second degree (Penal Law § 265.03). Attempted murder and second degree assault require an intent to kill and injure, respectively, whereas criminal possession of a weapon in the second degree requires only an intent to use the weapon unlawfully against another. Finally, defendant's sentence was not harsh and excessive (see, People v. Farrar, 52 N.Y.2d 302, 305).