PEOPLE v. ANDREWS (2000)

On appeal from a judgment convicting him of two counts of criminal possession of a weapon in the third degree (Penal Law § 265.02[1], [4] ), defendant contends that the implicit finding that the crime scene was not defendant's home is not supported by legally sufficient evidence and is against the weight of the evidence;  that the People improperly introduced evidence of defendant's threats to a prosecution witness without first seeking a ruling pursuant to People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59;  and that the charge on constructive possession was erroneous.

 The People established that defendant broke into the home of his ex-girlfriend, who had obtained an order of protection against him, and that defendant was arrested on her complaint.   Defendant admitted to the arresting officers that he lived elsewhere, and another witness testified to that same effect.   The evidence thus is legally sufficient to establish that defendant possessed the weapon in other than his home or place of business, in violation of Penal Law § 265.02(4) (see, People v. Rodriguez, 266 A.D.2d 160, 699 N.Y.S.2d 279, lv. denied 94 N.Y.2d 924, 708 N.Y.S.2d 364, 729 N.E.2d 1163;  People v. Trinidad, 237 A.D.2d 635, 636, 655 N.Y.S.2d 640, lv. denied 89 N.Y.2d 1102, 660 N.Y.S.2d 396, 682 N.E.2d 997;  People v. Oakman, 215 A.D.2d 596, 597, 626 N.Y.S.2d 850, lv. denied 86 N.Y.2d 799, 632 N.Y.S.2d 513, 656 N.E.2d 612).   Moreover, we cannot conclude that the jury failed to give the evidence the weight it should have been accorded on that issue (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672;  People v. Rodriguez, supra, at 160, 699 N.Y.S.2d 279;  People v. Trinidad, supra, at 636, 655 N.Y.S.2d 640).

 Supreme Court did not err in allowing evidence of defendant's threats against a prosecution witness, despite the People's failure to seek a Ventimiglia ruling (see, People v. Pugh, 236 A.D.2d 810, 812, 653 N.Y.S.2d 994, lv. denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994;  People v. Sherman, 156 A.D.2d 889, 891, 550 N.Y.S.2d 109, lv. denied 75 N.Y.2d 970, 556 N.Y.S.2d 255, 555 N.E.2d 627).

We have considered defendant's challenge to the court's charge and conclude that it is without merit.

Judgment unanimously affirmed.

MEMORANDUM: