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,
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.
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).
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