PEOPLE v. WILLIAMS (2019)

Judgment, Supreme Court, Bronx County (William I. Mogulescu, J. at jury trial and sentencing;  Efrain Alvarado, J. at hearing on motion to set aside the verdict), rendered April 15, 2015, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of 7 years, unanimously affirmed.

The court properly denied defendant's request for a charge on the defense of temporary lawful possession.  There was no reasonable view of the evidence, viewed most favorably to defendant, to support such an instruction.  Regardless of whether defendant came into possession of a pistol in an excusable manner, he “used [it] in a dangerous manner” (People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372 [1980] ) when he fired five shots in the lobby of a building, admittedly shooting two victims (including a bystander not claimed to be posing any threat) while defendant “just blanked out” (see People v. Aracil, 45 A.D.3d 401, 845 N.Y.S.2d 311 [1st Dept. 2007], lv denied 9 N.Y.3d 1030, 852 N.Y.S.2d 16, 881 N.E.2d 1203 [2008] ).  The fact that the jury acquitted defendant of other charges (which, we note, involved intentional rather than reckless conduct) does not warrant a different conclusion;  we find it “imprudent to speculate concerning the factual determinations that underlay the verdict” (People v. Horne, 97 N.Y.2d 404, 413, 740 N.Y.S.2d 675, 767 N.E.2d 132 [2002];  see also People v. Hemmings, 2 N.Y.3d 1, 5, 776 N.Y.S.2d 201, 808 N.E.2d 336 n. [2004] ).

The hearing court, to whom the trial court had referred defendant's CPL 330.30(2) motion to set aside the verdict on the ground of improper conduct toward a juror, correctly denied the motion.  There is no basis for disturbing the court's finding that a juror's testimony about being threatened was incredible (see e.g. People v. Wilson, 93 A.D.3d 483, 485, 939 N.Y.S.2d 463 [1st Dept. 2012], lv denied 19 N.Y.3d 978, 950 N.Y.S.2d 361, 973 N.E.2d 771 [2012] ).