PEOPLE v. BAH (2024)

Judgment, Supreme Court, New York County (Michele Rodney, J.), rendered September 23, 2019, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to a term 3 to 6 years, unanimously affirmed.

The court properly denied defendant's request to issue a justification charge to the jury, as defendant was only charged with a possessory offense (see People v. Pons, 68 N.Y.2d 264, 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 [1986];  People v. Berrocal, 220 A.D.3d 425, 426, 197 N.Y.S.3d 30 [1st Dept. 2023], lv denied 40 N.Y.3d 1038, 200 N.Y.S.3d 767, 223 N.E.3d 1243 [2023]).  As an alternative holding, we find that the court properly concluded that there was no reasonable view of the evidence supporting a conclusion that a reasonable person in defendant's circumstances would have believed that the exercise of force was necessary to protect themselves from the use or imminent use of unlawful force (see Penal Law § 35.15(1);  People v. Brown, 33 N.Y.3d 316, 321, 102 N.Y.S.3d 143, 125 N.E.3d 808 [2019];  People v. Umali, 10 N.Y.3d 417, 425, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], cert denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009]).

As for defendant's request that the court issue an intent to use unlawfully and justification charge, we also find that defendant did not propose a reasonable view of the evidence supporting that charge (see People v. Gordineer, 181 A.D.3d 505, 507, 120 N.Y.S.3d 39 [1st Dept. 2020], lv. denied 35 N.Y.3d 1027, 126 N.Y.S.3d 36, 149 N.E.3d 874 [2020];  People v. Echevarria, 136 A.D.3d 589, 589, 26 N.Y.S.3d 269 [1st Dept. 2016], lv denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016]).  As an alternative holding, we find no grounds for reversal, since there was no reasonable possibility that the court's charge misled the jury as to the People's burden (see People v. Richardson, 115 A.D.3d 617, 618, 982 N.Y.S.2d 476 [1st Dept. 2014] lv denied 23 N.Y.3d 1041, 993 N.Y.S.2d 255, 17 N.E.3d 510 [2014]).

Defendant's Second Amendment challenge is unpreserved (see generally People v. Cabrera, 41 N.Y.3d 35, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023]), and we decline to consider it in the interest of justice.  As an alternative holding, we find that the court did not impermissibly burden defendant's Second Amendment rights, and note that contrary to defendant's contention, Penal Law § 265.02(1) does not prohibit defendant from using a weapon for self-defense.

Defendant's challenges to the prosecutor's comments on summation are unpreserved because defendant failed to object, made only general objections, or failed to request further relief after the court sustained objections (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006]), and we decline to consider them in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).