PEOPLE v. ROBINSON (2009)

Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2) ] ) and criminal possession of a weapon in the third degree (§ 265.02 [former (4) ] ).   We reject defendant's contention that Supreme Court erred in refusing to charge the defense of temporary innocent possession of the firearm that is the subject of the indictment.   Viewing the evidence in the light most favorable to defendant (see People v. Caldarola, 45 A.D.3d 600, 845 N.Y.S.2d 117, lv. denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447), we conclude that, although there is a reasonable view of the evidence upon which the jury could have found that defendant had a lawful basis for his initial possession of the firearm, there is no reasonable view of the evidence upon which the jury could have found that defendant's use of the firearm thereafter was lawful (see generally People v. Banks, 76 N.Y.2d 799, 801, 559 N.Y.S.2d 959, 559 N.E.2d 653;  People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372).

According to his own written statement to the police as well as his trial testimony, defendant was holding the firearm when he intentionally sought out an individual hiding in the bathroom whom he suspected of having sexual relations with the mother of his friend's children (see generally People v. Britton, 27 A.D.3d 1014, 1015, 812 N.Y.S.2d 676, lv. denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674).   Defendant then waved the firearm around the bathroom in the presence of that individual and two other individuals who had followed him into the bathroom (see generally People v. Pereira, 220 A.D.2d 696, 697, 633 N.Y.S.2d 63, lv. denied 87 N.Y.2d 1023, 644 N.Y.S.2d 157, 666 N.E.2d 1071).   When the individual escaped from the bathroom and ran from the house, defendant chased after him, again with the firearm in hand, at which time the firearm discharged.   Defendant thereafter left the scene with the gun and hid it on a shelf in his sister's basement (see generally People v. Gonzalez, 262 A.D.2d 1061, 693 N.Y.S.2d 362, lv. denied 93 N.Y.2d 1018, 697 N.Y.S.2d 577, 719 N.E.2d 938).   When defendant saw the police arrive at his sister's house, he gave the gun to his brother and asked his brother to hide the gun for him.   Defendant then attempted to avoid arrest by fleeing out the back door of his sister's house.   Such conduct is “utterly at odds with [any] claim of innocent possession ․ temporarily and incidentally [resulting] from ․ disarming a wrongful possessor” (People v. Snyder, 73 N.Y.2d 900, 902, 539 N.Y.S.2d 285, 536 N.E.2d 614 [internal quotation marks omitted];  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;  People v. Bell, 46 A.D.3d 385, 848 N.Y.S.2d 618, lv. denied 10 N.Y.3d 808, 857 N.Y.S.2d 41, 886 N.E.2d 806).

Finally, we conclude that the sentence is not unduly harsh or severe.

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

MEMORANDUM: