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People v. Smith

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


June 5, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
CHRISTOPHER S. SMITH, DEFENDANT-APPELLANT.

Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered December 14, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree.

PRESENT: MARTOCHE, J.P., SMITH, FAHEY, CARNI, AND GREEN, JJ.

MEMORANDUM AND ORDER

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

Memorandum

On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]), defendant contends that County Court erred in refusing to charge the defense of temporary innocent possession of a weapon.

We reject that contention. The evidence presented at trial established that, rather than relinquishing the gun to the police, defendant fled on foot and threw the weapon onto a roof. Defendant's conduct was "utterly at odds with any claim of innocent possession" (People v Williams, 50 NY2d 1043, 1045; see People v McCoy, 46 AD3d 1348, 1349-1350, lv denied 10 NY3d 813) and, thus, " 'there was no reasonable view of the evidence upon which the jury could have found that the defendant's possession [of the weapon] was innocent' " (McCoy, 46 AD3d at 1349-1350).

20090605

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