Opinion
997 KA 16-01243
11-19-2021
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANTHONY C. HOLMES, ALSO KNOWN AS ANTHONY HOLMES, JR., ALSO KNOWN AS TONY HOLMES, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, JEFFREY WICKS, PLLC (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, JEFFREY WICKS, PLLC (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
Appeal from a judgment of the Monroe County Court (Thomas R. Morse, A.J.), rendered June 1, 2016. The judgment convicted defendant after a nonjury trial of criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Defendant contends that the evidence is legally insufficient to disprove the defense of temporary and innocent possession, and that the verdict is against the weight of the evidence. We reject those contentions. "[P]ossession of a weapon may be innocent and not criminal" (People v Holes, 118 A.D.3d 1466, 1467 [4th Dept 2014] [internal quotation marks omitted]; see People v Almodovar, 62 N.Y.2d 126, 130 [1984]). "Innocent possession of a weapon is possession that is temporary and not for an unlawful purpose" (Holes, 118 A.D.3d at 1467 [internal quotation marks omitted]; see Almodovar, 62 N.Y.2d at 130). "Temporary and lawful possession may be established where there is 'a legal excuse for having the weapon... as well as facts tending to establish that, once possession has been obtained, the weapon ha[s] not been used in a dangerous manner'" (People v Curry, 85 A.D.3d 1209, 1211 [3d Dept 2011], lv denied 17 N.Y.3d 815 [2011], quoting People v Williams, 50 N.Y.2d 1043, 1045 [1980]). When a temporary and lawful possession defense is raised, it is incumbent on the People to disprove it beyond a reasonable doubt (see Holes, 118 A.D.3d at 1467).
Viewing the evidence in the light most favorable to the People (see People v Contes, 60 N.Y.2d 620, 621 [1983]), we conclude that "there is a valid line of reasoning and permissible inferences from which a rational [factfinder] could have found that the People disproved the defense" of temporary and lawful possession beyond a reasonable doubt (People v Allen, 36 N.Y.3d 1033, 1034 [2021]; see People v Alls, 117 A.D.3d 1190, 1191-1192 [3d Dept 2014]; People v Lucas, 94 A.D.3d 1441, 1441 [4th Dept 2012], lv denied 19 N.Y.3d 964 [2012]). Among other things, defendant admitted that he possessed a weapon and fired it twice. In addition, viewing the evidence in light of the elements of the crime in this nonjury trial (see People v Danielson, 9 N.Y.3d 342, 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 N.Y.2d 490, 495 [1987]). Defendant testified that he took possession of the weapon from another during an altercation, which in some circumstances may establish temporary and lawful possession (see Almodovar, 62 N.Y.2d at 130; People v Hicks, 110 A.D.3d 1488, 1488 [4th Dept 2013], lv denied 22 N.Y.3d 1156 [2014]; Curry, 85 A.D.3d at 1211; People v Gonzalez, 262 A.D.2d 1061, 1061 [4th Dept 1999], lv denied 93 N.Y.2d 1018 [1999]). Other testimony, however, and rational inferences that may be drawn therefrom, established that defendant did not recover the weapon from anyone prior to the shooting, and County Court's determination to reject defendant's testimony to the contrary is in accord with the weight of the evidence (see People v Pierre, 194 A.D.3d 580, 580-581 [1st Dept 2021], lv denied 37 N.Y.3d 974 [2021]). In addition, the court was justified in concluding beyond a reasonable doubt that defendant used the weapon in a dangerous manner and that his possession of the weapon was not innocent (see id. at 581; see generally Williams, 50 N.Y.2d at 1045).