People v. Moore

202 A.D.3d 1373

162 N.Y.S.3d 567

The PEOPLE of the State of New York, Respondent,

v.Raymond MOORE, Appellant.

110358

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 11, 2022

Decided and Entered: February 24, 2022

Brian M. Callahan, Albany, for appellant.

David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Garry, P.J., Lynch, Pritzker, Colangelo and Ceresia, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered February 22, 2018, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal possession of a firearm.

Defendant was convicted, after a jury trial, of criminal possession of a weapon in the second degree and criminal possession of a firearm stemming from an incident that occurred in the early morning hours of June 18, 2016 at the victim's apartment where defendant was waving a handgun around and he hit the victim in the head with it. As defendant was hitting the victim in the head with the handgun, it went off and the victim suffered a serious brain injury. Defendant was thereafter sentenced as a predicate violent felony offender to concurrent prison terms, the greatest of which was 15 years, to be followed by five years of postrelease supervision. Defendant appeals.

Defendant argues that the verdict as to the conviction for criminal possession of a weapon in the second degree was legally insufficient and was against the weight of the evidence.¹ Initially, because defendant, during his trial order of dismissal, did not include the specific arguments he now raises on appeal, he has failed to preserve his challenge to the legal sufficiency of the evidence (see People v. Harris, 177 A.D.3d 1199, 1200, 115 N.Y.S.3d 477 [2019], lv denied 35 N.Y.3d 970, 125 N.Y.S.3d 26, 148 N.E.3d 490 [2020] ). Nevertheless, this Court necessarily determines whether the People proved each element of criminal possession of a weapon in the second degree when assessing defendant's weight of the evidence challenge (see People v. Barzee, 190 A.D.3d 1016, 1017, 138 N.Y.S.3d 718 [2021], lv denied 36 N.Y.3d 1094, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021] ).

Pursuant to Penal Law § 265.03(3), to find a person guilty of criminal possession of a weapon in the second degree, the People must establish that he or she possessed a loaded firearm outside of his or her home or place of business (see People v. Cooper, 199 A.D.3d 1061, 1063, 157 N.Y.S.3d 185 [2021] ). Penal Law § 265.00(15) defines a loaded firearm as "any firearm loaded with ammunition or any firearm which is possessed by one who, at the same time, possesses a quantity of ammunition which may be used to discharge such firearm." Defendant specifically concedes that the proof at trial established that he possessed an "operational" firearm while at the victim's apartment on June 18, 2016. However, he contends that the People failed to establish that the firearm had live ammunition. We disagree.

One witness testified that she observed defendant take a clip out of the gun while in the bedroom of the victim's apartment. Another witness testified that defendant was yelling that he "always has one in the chamber." The victim testified that, while she was sitting on her couch, defendant was standing in front of her when he began beating her on the head with the gun. Although it is unclear if she heard the gun go off, she testified that a bullet grazed her head. Several witnesses who were present during the incident described having heard a gun "go off," and one testified that, when he heard the gun go off, he saw a spark. A detective with the City of Kingston Police Department testified that he recovered a spent bullet and shell casing near an area of the couch where he observed blood and a clump of human hair. "In view of this evidence, a contrary result would have been unreasonable and, therefore, the verdict will not be disturbed" ( People v. Cooper, 199 A.D.3d at 1063–1064, 157 N.Y.S.3d 185 ; see People v. Cloonan, 166 A.D.3d 1063, 1064–1065, 87 N.Y.S.3d 707 [2018], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 [2020] ).

Defendant also argues that Cou...