PEOPLE v. JOHNSON (2008)

We previously granted defendant's motion for a writ of error coram nobis (People v. Johnson, 43 A.D.3d 1453, 841 N.Y.S.2d 925), and defendant now appeals de novo from the judgment convicting him after a jury trial of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1], [former (4) ] ).   Defendant failed to preserve for our review his contention that his conviction of that crime under former subdivision (4) is not supported by legally sufficient evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   We agree with defendant, however, that the verdict with respect to that count 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), and we therefore modify the judgment accordingly.   A necessary element of criminal possession of a weapon under former subdivision (4) was that the subject firearm was “both operable and loaded with live ammunition” (People v. Shaffer, 66 N.Y.2d 663, 664, 495 N.Y.S.2d 965, 486 N.E.2d 823).   Here, although the firearms examiner testified that he had test-fired the handgun possessed by defendant and found it to be operable, he did not test-fire the single cartridge found in the handgun.   Thus, notwithstanding the speculative opinion testimony of the firearms examiner that he “saw no problems” with the cartridge, the jury's requisite finding beyond a reasonable doubt that the ammunition was live is against the weight of the evidence (see id.;  People v. Daniels, 77 A.D.2d 745, 746, 430 N.Y.S.2d 881;  see generally People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1).

In view of our determination, we do not reach the contention of defendant that he was denied effective assistance of counsel based on defense counsel's failure to seek a trial order of dismissal with respect to that count.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the facts by reversing that part convicting defendant of criminal possession of a weapon in the third degree under count one of the indictment and dismissing that count of the indictment and as modified the judgment is affirmed.

MEMORANDUM: