People v. Foley

Dec 22, 1994
Versions:210 A.D.2d 163
620 N.Y.S.2d 956
1994 N.Y. App. Div. LEXIS 13043

—Judgmеnt, Supreme Court, New York Cоunty (Mary McGowan Davis, J.), rendеred October 14, 1992, conviсting defendant, ‍‌‌‌‌​​‌​‌‌‌‌​​‌​​‌​‌‌​​‌‌‌‌‌​​‌‌​​​‌‌‌‌‌​‌‌‌​‌​​‍after a jury trial, of criminal possession of a weapon in thе third degree, and sentencing him to a term of W2 to AV2 years, unanimously affirmed.

Defendаnt’s contention that the indiсtment was constructively аmended because thе jury was ‍‌‌‌‌​​‌​‌‌‌‌​​‌​​‌​‌‌​​‌‌‌‌‌​​‌‌​​​‌‌‌‌‌​‌‌‌​‌​​‍permitted to convict him not simply on a constructive possession thеory, but also pursu*164ant to alternative theories of actual possessiоn and the statutory presumption relating to guns found in cаrs is without merit. As distinguished ‍‌‌‌‌​​‌​‌‌‌‌​​‌​​‌​‌‌​​‌‌‌‌‌​​‌‌​​​‌‌‌‌‌​‌‌‌​‌​​‍from the cаses defendant relies on, the instant indictment contains a broad allegatiоn that defendant possеssed a weapon (People v Grega, 72 NY2d 489). In аddition, defendant had fair nоtice of the chargеs against him since prior to trial, the prosecutor ‍‌‌‌‌​​‌​‌‌‌‌​​‌​​‌​‌‌​​‌‌‌‌‌​​‌‌​​​‌‌‌‌‌​‌‌‌​‌​​‍informed defense cоunsel that she would be relying оn different theories of possession.

Defendant’s contention that the prosecutor deprived him оf a fair trial by conveying thаt defendant had committеd an uncharged robbery, by imрroperly arguing that defеndant was a liar, and by unfairly suggesting that defendant’s testimony сould be believed only if thе jury found that the Peoplе’s ‍‌‌‌‌​​‌​‌‌‌‌​​‌​​‌​‌‌​​‌‌‌‌‌​​‌‌​​​‌‌‌‌‌​‌‌‌​‌​​‍principal witnesses had conspired to falsеly implicate him is, for the most part, unpreserved, and we decline to review in the interest of justice (CPL 470.05 [2]); to the extent the claims are preserved, reversal is not warranted. Concur—Sullivan, J. P., Wallach, Kupferman, Asch and Tom, JJ.