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People v. Dilone

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 19, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
CHRISTIAN DILONE, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered December 20, 2006, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 9 and 7 years, respectively, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Sweeny, Acosta, Freedman, JJ.

1902/06

Defendant's challenge to the sufficiency of the evidence supporting his conviction of second-degree weapon possession is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also find that the evidence of defendant's intent to use the weapon unlawfully was legally sufficient in light of the statutory presumption of unlawful intent (Penal Law § 265.15[4]), which the court properly submitted to the jury. We further find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]).

The court properly exercised its discretion in denying defendant's mistrial motion, made on the basis of a portion of the prosecutor's summation that allegedly misstated the law. Any possible confusion in this regard was prevented by the court's correct and thorough jury instruction on the particular subject at issue.

We decline to vacate the third-degree possession conviction in the interest of justice.

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090319

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