PEOPLE v. BERROCAL (2023)

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered November 22, 2013, convicting defendant, after a jury trial, of criminal possession of a weapon in the fourth degree, and sentencing him to three years' probation, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348 [2007]).  Defendant's acquittals of attempted murder, assault, and attempted assault charges do not warrant overturning the conviction of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2]) based on the evidence that he drew two long knives and pointed them at his coworkers in their workplace (see People v. Guzman, 266 A.D.2d 37, 38 [1st Dept 1999], lv denied 94 N.Y.2d 920 [2000];  People v. Russell, 227 A.D.2d 232 [1st Dept 1996], lv denied 88 N.Y.2d 969 [1996]).  “Defendant's possession of the weapon[s] with intent to use [them] unlawfully against another was ․ completed by defendant, at the latest, when he drew the weapon[s] to intimidate” (People v. Perez, 278 A.D.2d 2, 3 [1st Dept 2000], lv denied 96 N.Y.2d 804 [2001]).  We note that defendant raised a justification defense to the other charges, but justification is not a defense to weapon possession (see People v. Pons, 68 N.Y.2d 264 [1986]).  It does not avail defendant to invoke the Second Amendment in support of his weight of the evidence claim (see generally McDonald v. City of Chicago, Ill., 561 U.S. 742, 786 [2010] [“the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose”] [internal quotation marks omitted]).