People v. Toribio

Jun 27, 1995
Versions:216 A.D.2d 189
629 N.Y.S.2d 210
1995 N.Y. App. Div. LEXIS 6972

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered October 13, 1992, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of l1/2 to 41/2 years and 1 to 3 years, respectively, unanimously affirmed. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

Viewing the evidence in a light most favorable to the People and giving them the benefit of every reasonable inference (People v Malizia, 62 NY2d 755, 757, cert denied 469 US 932), defendant’s guilt of criminal possession of a weapon in the second and third degrees was proven beyond a reasonable doubt. Under Penal Law § 265.15 (4), defendant’s possession of the gun was presumptive evidence of his intent to use it "unlawfully against another”, as required by Penal Law § 265.03 for second degree possession liability (People v Lee, 154 AD2d 399, 400, lv denied 75 NY2d 772), and the requisite intent was in any event inferable from the evidence that defendant removed the gun from his car, pulled back the slide which would chamber a round, and pointed it at someone in the crowd. Nor were the People required to prove that defendant knew that the gun was then loaded (People v Ansare, 96 AD2d 96, 97).

Defendant’s argument that the court should have charged the jury on the law of temporary and lawful possession of a weapon is unpreserved for appellate review, and in any event without merit. Even under defendant’s version of the incident, the elements of this defense were not established (see, People v Karim, 176 AD2d 670, 671, lv denied 79 NY2d 859). Concur— Ellerin, J. P„, Wallach, Kupferman, Nardelli and Mazzarelli, JJ.