Opinion
02-06-2015
The PEOPLE of the State of New York, Respondent, v. Lonnie SPEARS, Defendant–Appellant.
David J. Pajak, Alden, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
David J. Pajak, Alden, for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:Defendant appeals 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 was indicted for his alleged involvement in a robbery and burglary, but the jury convicted him only of the single weapons count.Defendant made only a general motion to dismiss the indictment for “facial insufficiency,” and he thus failed to preserve for our review the contentions he now advances on appeal (see People v. Gray, 86 N.Y.2d 10, 20–21, 629 N.Y.S.2d 173, 652 N.E.2d 919 ; People v. Morris, 217 A.D.2d 941, 941, 631 N.Y.S.2d 261, lv. denied 87 N.Y.2d 849, 638 N.Y.S.2d 607, 661 N.E.2d 1389 ; see generally CPL 200.50[7] ), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ). In addition, defendant's contention that the indictment did not adequately specify the county in which the alleged crime occurred is raised for the first time in his reply brief and is therefore not properly before us (see Matter of Sedita v. Sacha, 99 A.D.3d 1259, 1260, 951 N.Y.S.2d 459 ).
Defendant contends that the evidence is not legally sufficient to support the conviction inasmuch as the People failed to adduce any evidence at trial that the firearm at issue was operable and loaded with live ammunition. That contention is not preserved for our review (see Gray, 86 N.Y.2d at 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 ) and, in any event, lacks merit. Although the firearm was never recovered, we conclude that the People supplied the necessary proof through circumstantial evidence, i.e., “eyewitness testimony and surrounding circumstances” (People v. Samba, 97 A.D.3d 411, 414, 948 N.Y.S.2d 58, lv. denied 20 N.Y.3d 1065, 962 N.Y.S.2d 616, 985 N.E.2d 926 ). Viewing the evidence in light of the elements of the crime as charged to the jury, we reject defendant's further contention that the verdict is against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Defendant failed to preserve for our review his further contention that the verdict is repugnant inasmuch as he failed to object to the alleged repugnancy of the verdict before the jury was discharged (see People v. Ali, 89 A.D.3d 1417, 1420, 932 N.Y.S.2d 616, lv. denied 18 N.Y.3d 922, 942 N.Y.S.2d 461, 965 N.E.2d 963 ; see also People v. Lurcock, 219 A.D.2d 797, 798, 631 N.Y.S.2d 959, lv. denied 88 N.Y.2d 881, 645 N.Y.S.2d 455, 668 N.E.2d 426 ). In any event, we conclude that the contention lacks merit (see People v. Tucker, 55 N.Y.2d 1, 7, 447 N.Y.S.2d 132, 431 N.E.2d 617, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 ; People v. McLaurin, 50 A.D.3d 1515, 1516, 856 N.Y.S.2d 773 ; see also People v. Clanton, 19 A.D.3d 1035, 1035–1036, 796 N.Y.S.2d 795, lv. denied 5 N.Y.3d 804, 803 N.Y.S.2d 33, 836 N.E.2d 1156 ).
The sentence is not unduly harsh or severe. We have examined defendant's remaining contentions and conclude that they lack merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.