People v. Delvas

Mar 9, 1992
Versions:181 A.D.2d 740
581 N.Y.S.2d 70
1992 N.Y. App. Div. LEXIS 3263

— Appeal by the defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered October 3, 1986, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the People failed to prove his guilt of criminal possession of a weapon beyond a reasonable doubt because the evidence presented at trial rebutted the statutory presumption concerning possession of a firearm in an automobile (Penal Law § 265.15 [3]). However, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. The evidence adduced at trial established that police officers recovered a loaded and operable .38 caliber revolver from the backseat of a car in which the defendant was a passenger. Although the driver of the car testified that the revolver belonged to him and that it was actually in the trunk of his car, the driver’s testimony, which was significantly impeached on cross-examination, presented an issue of credibility for the jury to resolve (see, People v Lemmons, 40 NY2d 505; People v Coleman, 153 AD2d 643; People v Terry, 148 AD2d 478; People v Hutchenson, 136 AD2d 737; cf., People v Cullen, 138 AD2d 501). Moreover, the jury rationally could have inferred that the driver did not exclusively possess the revolver since it was not found on his person (see, People v Lemmons, supra; People v Hutchenson, supra). Accordingly, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

*741We have examined the defendant’s remaining contentions, and find that they are either unpreserved for appellate review or without merit. Bracken, J. P., Sullivan, Lawrence and Eiber, JJ., concur.