PEOPLE v. NIX (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered April 25, 2006, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence was legally insufficient to establish his guilt of criminal possession of a weapon in the second degree beyond a reasonable doubt is unpreserved for appellate review (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Wilson, 50 A.D.3d 711, 854 N.Y.S.2d 540;  People v. Leon, 19 A.D.3d 509, 510, 797 N.Y.S.2d 525, affd. 7 N.Y.3d 109, 817 N.Y.S.2d 619, 850 N.E.2d 666).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the defendant possessed a loaded and operable weapon with the requisite intent to use it unlawfully against another (see People v. Pons, 68 N.Y.2d 264, 267–268, 508 N.Y.S.2d 403, 501 N.E.2d 11;  People v. Wilson, 50 A.D.3d 711, 854 N.Y.S.2d 540;  People v. Leon, 19 A.D.3d 509, 510, 797 N.Y.S.2d 525, affd. 7 N.Y.3d 109, 817 N.Y.S.2d 619, 850 N.E.2d 666;  People v. Smith, 16 A.D.3d 602, 792 N.Y.S.2d 155).  Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The defendant further contends that the trial court should have given the jury a more detailed instruction regarding the impact of his justification defense on the issue of his intent to use the weapon unlawfully.  However, since the defendant raised no objection to the charge as given, his present claim is unpreserved for appellate review (see CPL 470.05 [2];  People v. Francis, 49 A.D.3d 552, 853 N.Y.S.2d 366).  In any event, the charge as a whole was a correct statement of the law which accurately set forth the elements of criminal possession of a weapon in the second degree, and the applicable burden of proof (see People v. Whalen, 59 N.Y.2d 273, 279, 464 N.Y.S.2d 454, 451 N.E.2d 212;  People v. Thomas, 232 A.D.2d 667, 649 N.Y.S.2d 454).