PEOPLE v. WASHINGTON (2019)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting her, upon a jury verdict, of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ), arising from an incident where she carried an electronic stun gun in her purse while attempting to enter the Monroe County Hall of Justice.  We affirm.

Defendant's contention regarding the legal sufficiency of the evidence with respect to the operability of the stun gun is not preserved for our review inasmuch as her motion for a trial order of dismissal was not “ ‘specifically directed’ at [that] alleged” deficiency in the proof (People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995];  see generally People v. Boyd, 153 A.D.3d 1608, 1609, 61 N.Y.S.3d 431 [4th Dept. 2017], lv. denied 30 N.Y.3d 1103, 77 N.Y.S.3d 2, 101 N.E.3d 388 [2018] ).  In any event, the evidence, which included the testimony of a firearms examiner who tested the device at issue, viewed in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), is legally sufficient to support the conviction.  Indeed, there is a “valid line of reasoning and permissible inferences which could lead a rational person to the conclusion” (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) that the device possessed by defendant was an “ ‘[e]lectronic stun gun’ ” that was operable (Penal Law § 265.00 [15–c];  see generally People v. Berrezueta, 31 N.Y.3d 1091, 1092, 79 N.Y.S.3d 622, 104 N.E.3d 726 [2018], rearg. denied 32 N.Y.3d 1016, 86 N.Y.S.3d 424, 111 N.E.3d 318 [2018];  People v. Williams, 151 A.D.3d 1834, 1835, 57 N.Y.S.3d 319 [4th Dept. 2017], lv denied 29 N.Y.3d 1135, 64 N.Y.S.3d 685, 86 N.E.3d 577 [2017] ).

By failing to request different jury instructions or object to the charge as given, defendant “failed to preserve [her] challenge[ ] to the jury instructions” (People v. VanGorden, 147 A.D.3d 1436, 1440, 46 N.Y.S.3d 730 [4th Dept. 2017], lv denied 29 N.Y.3d 1037, 62 N.Y.S.3d 306, 84 N.E.3d 978 [2017];  see People v. Johnson, 103 A.D.3d 1251, 1252, 959 N.Y.S.2d 365 [4th Dept. 2013], lv denied 21 N.Y.3d 1005, 971 N.Y.S.2d 257, 993 N.E.2d 1279 [2013] ).

Defendant's challenges to the felony complaint and the grand jury proceedings are not properly before us.  “ ‘The felony complaint was superseded by the indictment [upon which defendant was found] guilty,’ ” thereby rendering academic any issue with respect to the felony complaint (People v. Mitchell, 132 A.D.3d 1413, 1416, 17 N.Y.S.3d 563 [4th Dept. 2015], lv denied 27 N.Y.3d 1072, 38 N.Y.S.3d 842, 60 N.E.3d 1208 [2016] ), and County Court's determination with respect to the legal sufficiency of the evidence before the grand jury is “not reviewable upon an appeal from an ensuing judgment of conviction based upon legally sufficient trial evidence” (CPL 210.30[6];  see People v. Figueroa, 156 A.D.3d 1348, 1349–1350, 68 N.Y.S.3d 290 [4th Dept. 2017], lv denied 31 N.Y.3d 1013, 78 N.Y.S.3d 283, 102 N.E.3d 1064 [2018] ).