PEOPLE v. ROBINSON (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ) and criminal mischief in the third degree (§ 145.05[2] ).   Contrary to defendant's contention, the conviction of criminal possession of a weapon is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Viewing the evidence in the light most favorable to the People, as we must (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the evidence that defendant pulled out a knife and a pair of scissors when he was prevented from leaving the store in question as well as the evidence that he violently broke the glass in a door in order to escape from the store is legally sufficient to establish that he considered the knife and pair of scissors to be “weapon[s] of significance ․ and not ․ innocent utilitarian utensil[s]” (Matter of Jamie D., 59 N.Y.2d 589, 594, 466 N.Y.S.2d 286, 453 N.E.2d 515;  see also Matter of Sean R., 33 A.D.3d 925, 926, 824 N.Y.S.2d 302).   We further conclude that the verdict with respect to that count is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 Contrary to defendant's further contention, County Court's adverse inference charge was an appropriate sanction for the inadvertent destruction of the knife and pair of scissors at issue (see generally People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134).   The testimony of the People's witness provided a sufficient description of the items, and defense counsel “made effective use of” the destruction of the items in cross-examining the People's witnesses as well as on summation (People v. Wilson, 2 A.D.3d 185, 186, 768 N.Y.S.2d 464, lv. denied 1 N.Y.3d 603, 776 N.Y.S.2d 234, 808 N.E.2d 370).   Finally, we reject the contention of defendant that the court erred in sentencing him to consecutive terms of imprisonment (see People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212;  People v. Frazier, 212 A.D.2d 976, 977, 623 N.Y.S.2d 459), and we otherwise reject his challenge to the severity of the sentence.

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

MEMORANDUM: