PEOPLE v. YARBOROUGH (2018)

Judgment, Supreme Court, New York County (Ann M. Donnelly, J.), rendered June 18, 2015, convicting defendant, after a jury trial, of two counts of criminal possession of a weapon in the second degree, and sentencing her to an aggregate term of 3 1/212 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  There is no basis for disturbing the jury's credibility determinations.  The jury's mixed verdict does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37, 729 N.E.2d 694 [2000] ).  The course of conduct of defendant and her companion, viewed as a whole, supports inferences that she knew her bag contained a pistol (see generally People v. Reisman, 29 N.Y.2d 278, 285–286, 327 N.Y.S.2d 342, 277 N.E.2d 396 [1971], cert denied 405 U.S. 1041, 92 S.Ct. 1315, 31 L.Ed.2d 582 [1972] ), and that she handed the pistol to her companion with the intent to assist him in using it unlawfully (see People v. Ramirez, 140 A.D.3d 545, 32 N.Y.S.3d 500 [1st Dept. 2016], lv denied 28 N.Y.3d 973, 43 N.Y.S.3d 261, 66 N.E.3d 7 [2016] ).  The evidence also supports the conclusion that the pistol was operable, notwithstanding that it had jammed (see People v. Cavines, 70 N.Y.2d 882, 524 N.Y.S.2d 178, 518 N.E.2d 1170 [1987] ).

Defendant's challenges to the prosecutor's summation are entirely unpreserved, notwithstanding defendant's postsummations mistrial motion (see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006];  People v. LaValle, 3 N.Y.3d 88, 116, 783 N.Y.S.2d 485, 817 N.E.2d 341 [2004] ), and we decline to review them in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1992];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 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] ).  We reject defendant's ineffective assistance of counsel claims relating to these issues.

The court properly denied defendant's request for an intoxication charge, since the evidence, viewed most favorably to defendant, did not support such a charge (see People v. Gaines, 83 N.Y.2d 925, 927, 615 N.Y.S.2d 309, 638 N.E.2d 954 [1994];  People v. Rodriguez, 76 N.Y.2d 918, 920, 563 N.Y.S.2d 48, 564 N.E.2d 658 [1990] ).  While there was evidence of defendant's consumption of alcohol and drugs, there was no evidence suggesting that her faculties were so impaired at the time of the crime that she could not have formed the requisite intent.

We perceive no basis for reducing the five-year term of postrelease supervision.