People v. Parks

200 A.D.3d 1598

155 N.Y.S.3d 887 (Mem)

The PEOPLE of the State of New York, Respondent,

v.David PARKS, Defendant-Appellant.

815

KA 18-02422

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

Entered: December 23, 2021

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (NOREEN E. MCCARTHY OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ). The charge arose from an incident in which defendant, who was a passenger in a car that came under gunfire from occupants of another car, fired a handgun at that other car. We affirm.

Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Contrary to defendant's assertion, we conclude that "the verdict cannot be against the weight of the evidence on [any form of justification] defense because [a justification] defense was not submitted to the jury" ( People v. Manners , 196 A.D.3d 1125, 1126, 149 N.Y.S.3d 743 [4th Dept. 2021], lv denied 37 N.Y.3d 1028, 153 N.Y.S.3d 427, 175 N.E.3d 452 [2021] ; see People v. Simpson , 173 A.D.3d 1617, 1618, 102 N.Y.S.3d 357 [4th Dept. 2019], lv denied 34 N.Y.3d 954, 110 N.Y.S.3d 631, 134 N.E.3d 630 [2019] ).

Contrary to defendant's further contention, Supreme Court properly denied his request for a justification instruction based on self-defense under Penal Law § 35.15 inasmuch as that particular defense is "inapplicable to the crime of criminal possession of a weapon, in any degree" ( People v. Alexander , 160 A.D.3d 1370, 1371, 76 N.Y.S.3d 675 [4th Dept. 2018], lv denied 32 N.Y.3d 1001, 86 N.Y.S.3d 760, 111 N.E.3d 1116 [2018] ; see People v. Pons , 68 N.Y.2d 264, 265, 508 N.Y.S.2d 403, 501 N.E.2d 11 [1986] ; People v. Almodovar , 62 N.Y.2d 126, 130-131, 476 N.Y.S.2d 95, 464 N.E.2d 463 [1984] ). Defendant's contention that Pons and Almodovar were abrogated by the United States Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) is wholly without merit and we conclude that, "[t]o the extent that defendant is claiming that [ ]he was constitutionally entitled to a jury charge on [self-defense], that claim is unpreserved and ... without merit" ( People v. Aracil , 45 A.D.3d 401, 402, 845 N.Y.S.2d 311 [1st Dept. 2007], lv denied 9 N.Y.3d 1030, 852 N.Y.S.2d 16, 881 N.E.2d 1203 [2008] ). To the extent defendant contends that the court should have provided a justification instruction pursuant to Penal Law § 35.05 (2), that contention is likewise unpreserved (see People v. LaPetina , 9 N.Y.3d 854, 855, 840 N.Y.S.2d 890, 872 N.E.2d 1196 [2007], rearg denied 13 N.Y.3d 855, 891 N.Y.S.2d 689, 920 N.E.2d 93 [2009] ).

We reject defendant's contention that defense counsel was ineffective for failing to request an instruction on temporary and lawful possession inasmuch as the evidence, viewed in the light most favorable to defendant (see generally People v. Zona , 14 N.Y.3d 488, 493, 902 N.Y.S.2d 844, 928 N.E.2d 1041 [2010] ), did not support such an instruction (see People v. Shamsiddeen , 98 A.D.3d 694, 694-695, 949 N.Y.S.2d 783 [2d Dept. 2012], lv denied 20 N.Y.3d 988, 958 N.Y.S.2d 703, 982 N.E.2d 623 [2012]). In order for defendant to be entitled to such an instruction, "there must be proof in the record showing a legal excuse for having the weapon in [one's] possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner" ( People v. Williams , 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372 [1980] ). Here, even assuming, arguendo, that defendant obtained possession of the gun in an excusable manner, we conclude that there were no facts tending to establish that thereafter the gun "had not been used in a dangerous manner" ( id. ; see People v. Williams , 172 A.D.3d 637, 637, 102 N.Y.S.3d 28 [1st Dept. 2019], affd 36 N.Y.3d 156, 139 N.Y.S.3d 594, 163 N.E.3d...