Opinion
2001-06012
Submitted September 9, 2002
October 1, 2002
Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered June 21, 2001, convicting him of criminal possession of a weapon in the third degree and petit larceny, upon a jury verdict, and imposing sentence.
Rochman Platzer Fallick Sternheim, LLP, New York, N.Y. (Barry M. Fallick of counsel), for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey and Daniel M. Reback of counsel), for respondent.
Before: DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, DANIEL F. LUCIANO, JJ.
ORDERED that the judgment is affirmed.
The defendant contends that his conviction of criminal possession of a weapon in the third degree should be reversed because the evidence was legally insufficient to prove the operability of the electronic dart gun recovered at the time of his arrest. However, since the defendant failed to move for a trial order of dismissal on this ground, his claim is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10; People v. Dobey, 285 A.D.2d 655; People v. D'Amico, 261 A.D.2d 635; People v. Udzinski, 146 A.D.2d 245) . In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to demonstrate the operability of the weapon (see People v. Cavines, 70 N.Y.2d 882; People v. Velez, 278 A.D.2d 53; People v. Lugo, 161 A.D.2d 122; People v. Walston, 147 Misc.2d 679). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
RITTER, J.P., KRAUSMAN, McGINITY and LUCIANO, JJ., concur.