THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ALFONSO DAVIS DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him, upon a nonjury verdict, of criminal possession of a weapon in the third degree (Penal Law § 265.02 [8]), arising from his possession in September 2022 of an operable handgun with 13 rounds of ammunition in the magazine. We previously held this case, reserved decision, and remitted the matter to County Court for a ruling on defendant's motion for a trial order of dismissal, on which the court had reserved decision (People v Davis, 240 AD3d 1376 [4th Dept 2025]). Upon remittal, the court denied the motion. We affirm.

Penal Law § 265.02 (8) criminalizes the possession of “a large capacity ammunition feeding device,” which includes “a magazine ․ that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition” (§ 265.00 [23]). A grandfather provision (see § 265.02 [former (8)]) applicable to certain large capacity feeding devices that were lawfully possessed prior to the 2013 amendments to section 265.02 (see L 2013, ch 1, § 41-a) was repealed effective July 6, 2022 (L 2022, ch 209, § 3). Defendant contends that the evidence is legally insufficient to support the conviction and that the verdict is against the weight of the evidence because the People failed to prove that the Division of Criminal Justice Services (DCJS) engaged in an outreach campaign to ensure that gun owners such as defendant were made aware of changes in the law regarding the possession of large capacity ammunition feeding devices (L 2022, ch 209, § 5).

Although defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v Cooley, 220 AD3d 1189, 1189 [4th Dept 2023], lv denied 41 NY3d 964 [2024]), “we necessarily review the evidence adduced as to each of the elements of the crime[ ] in the context of our review of defendant's challenge regarding the weight of the evidence” (People v Stephenson, 104 AD3d 1277, 1278 [4th Dept 2013], lv denied 21 NY3d 1020 [2013], reconsideration denied 23 NY3d 1025 [2014] [internal quotation marks omitted]). Viewing the evidence in light of the elements of the crime of criminal possession of a weapon in the third degree in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). A different verdict would have been unreasonable (see generally id.; People v Herring, 147 AD3d 1345, 1345 [4th Dept 2017], lv denied 29 NY3d 949 [2017]) given that the unrefuted evidence adduced by the People established that defendant knowingly possessed the weapon and that the weapon contained a magazine holding 13 rounds of ammunition with one round in the chamber, which exceeded the 10-round limit imposed by section 265.00 (23). We reject defendant's contention that the People were required to prove that he was aware of the 2022 amendment to section 265.02 (8) or that DCJS had a sufficient outreach campaign with respect to that amendment.

Entered: October 2, 2026

Ann Dillon Flynn

Clerk of the Court