Appeal from a judgment of the Supreme Court (Teresi, J.), rendered March 17, 2004 in Albany County, upon a verdict convicting defendant of four counts of the crime of criminal possession of a weapon in the third degree.
In this appeal, defendant challenges his convictions stemming from the discovery by the police of four weapons found in his bedroom. On March 5, 2003, the police arrived with a warrant to search defendant’s home for firearms and firearm related paraphernalia. According to police witnesses, when they knocked on the door defendant stuck his head out of a second story window—later established as part of the master bedroom—to inquire as to what was going on. The police then entered the house and found defendant unarmed, but in the master bedroom they discovered a stun gun, billy club and a Rung Fu star hanging in the closet, and a dagger attached by velcro to the side of the bed. Defendant was charged, and later convicted by a jury, of four counts of criminal possession of a weapon in the third degree and sentenced as a predicate felon to four concurrent sentences of 3V2 to 7 years in prison.
Defendant challenges the verdicts as against the weight of the credible evidence. A person is guilty of criminal possession of a weapon in the third degree if, having previously been convicted
Defendant’s fiancee and a friend, both of whom resided—as guests—in defendant’s home, testified at his trial. Through their testimony, defendant endeavored to convince the jury that he did not have dominion and control over the items in the master bedroom because other individuals were using that room during the period in question. Further, the witnesses claimed that they, and not defendant, owned the weapons. As a different verdict, based on this testimony, would not have been entirely unreasonable, we must, “like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” and determine whether the trier of fact gave the evidence the weight it should be accorded (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]).
There is ample evidence in the record to support the jury’s conclusion that the master bedroom where the weapons were found was defendant’s bedroom. Indeed, evidence was introduced that, even following the point when defendant allegedly allowed his friends to begin sleeping in the bed of the master bedroom, defendant kept many of his belongings—some cloth
With respect to the dagger, however, we find merit in defendant’s argument that the conviction must be reversed. By establishing possession of the dagger, the People were entitled to the statutory presumption that defendant intended to use the dagger unlawfully, and were charged appropriately (see Penal Law § 265.15 [4]). However, when weighed against the other circumstances of this case, we find that this bare presumption is insufficient to establish, beyond a reasonable doubt, that defendant possessed the dagger with intent to use it unlawfully. Indeed, the presumption is outweighed by the competing inference—drawn from the manner in which the dagger was attached to the bed, i.e., in plain view and to permit easy access to one lying in the bed—that the dagger was kept for self-defense, as a means of protection against an intruder. Accordingly, we find that defendant’s conviction for criminal possession of the dagger was against the weight of the evidence (see People v Bell, 158 AD2d 697, 698 [1990]; cf. People v Lemmons, 40 NY2d 505, 509-512 [1976]).
Defendant’s remaining arguments were not preserved for appellate review by an appropriate objection at trial. He contends that the prosecutor was guilty of misconduct when he cross-examined the defense witnesses who claimed ownership of the
Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur. Ordered that the judgment is modified, on the law, by reversing defendant’s conviction of criminal possession of a weapon in the third degree under count 4 of the indictment; said count dismissed; and, as so modified, affirmed.
