PEOPLE v. SMITH (2009)

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 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372;  see People v. McCoy, 46 A.D.3d 1348, 1349-1350, 848 N.Y.S.2d 505, lv. denied 10 N.Y.3d 813, 857 N.Y.S.2d 47, 886 N.E.2d 812) 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 A.D.3d at 1349-1350, 848 N.Y.S.2d 505).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: