Opinion
05-17-2017
The PEOPLE, etc., respondent, v. Aaron REEL, appellant.
Lynn W.L. Fahey, New York, NY (Anders Nelson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Anders Nelson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Ellen C. Abbot, and Matthew Luongo of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and BETSY BARROS, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lopez, J.), rendered August 6, 2015, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied the defendant's request to charge the jury with the defense of temporary and lawful possession. " ‘[T]o trigger the right [to a charge of temporary and lawful possession] there must be proof in the record showing a legal excuse for having the weapon in [the defendant's] possession, as well as facts tending to establish that, once possession has been obtained, the weapon had not been 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, quoting People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372 ). However, a defendant is not entitled to the charge where the evidence presented is "utterly at odds with any claim of innocent possession" (People v. Banks, 76 N.Y.2d at 801, 559 N.Y.S.2d 959, 559 N.E.2d 653 [internal quotation marks omitted]; see People v. Snyder, 73 N.Y.2d 900, 902, 539 N.Y.S.2d 285, 536 N.E.2d 614 ; People v. Williams, 50 N.Y.2d at 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372 ; People v. Smith, 54 A.D.3d 421, 421, 863 N.Y.S.2d 242 ). Here, viewing the evidence in the light most favorable to the defendant (see People v. Zona, 14 N.Y.3d 488, 493, 902 N.Y.S.2d 844, 928 N.E.2d 1041 ; People v. Shamsiddeen, 98 A.D.3d 694, 695, 949 N.Y.S.2d 783 ), although the gun was initially "thrust" upon the defendant's person, the defendant's own testimony established that he nonetheless accepted and retained possession of the gun and proceeded to conceal it on his person. He did all of this in anticipation of receiving drugs and discharging a debt owed to his drug dealer. This evidence was "utterly at odds with any claim of innocent possession" (People v. Banks, 76 N.Y.2d at 801, 559 N.Y.S.2d 959, 559 N.E.2d 653 [internal quotation marks omitted]; see People
v. Snyder, 73 N.Y.2d at 902, 539 N.Y.S.2d 285, 536 N.E.2d 614 ; People v. Williams, 50 N.Y.2d at 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372 ; People v. Smith, 54 A.D.3d at 421, 863 N.Y.S.2d 242 ).
The defendant's contention that the prosecutor's comments during summation constituted reversible error is unpreserved for appellate review because he failed to object at trial to the challenged remarks (see CPL 470.05[2] ; People v. Flanagan, 132 A.D.3d 693, 694, 17 N.Y.S.3d 178, affd. 28 N.Y.3d 644, 49 N.Y.S.3d 50, 71 N.E.3d 541 ). In any event, the challenged remarks were fair comment on the evidence (see People v. Ashwal, 39 N.Y.2d 105, 109–110, 383 N.Y.S.2d 204, 347 N.E.2d 564 ), responsive to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885 ; People v. Moore, 29 A.D.3d 825, 825–826, 814 N.Y.S.2d 277 ), or constituted harmless error (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Hill, 286 A.D.2d 777, 778, 730 N.Y.S.2d 723 ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
The defendant's remaining contention is without merit.