PEOPLE v. HAWKINS (1999)

Appeal by the defendant (1) from a judgment of the Supreme Court, Kings County (Harkavy, J.), rendered March 27, 1995, convicting him of criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence, and (2), by permission, from an order of the same court, entered March 28, 1997, which denied, without a hearing, his motion pursuant to CPL article 440 to vacate the judgment of conviction.

ORDERED that the judgment and order are affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Contrary to the defendant's contention, his conduct was not consistent with innocent possession.   The evidence indicates that the defendant pointed a loaded gun at the victims, attempted to conceal the weapon and run away after the plainclothes officers identified themselves as the police, and then attempted to dispose of the weapon.   While it is settled that mere possession of a weapon is not criminal in every instance, retaining a gun beyond opportunities to hand it over to the authorities is “utterly at odds with any claim of innocent possession” (People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372;  accord, People v. Snyder, 73 N.Y.2d 900, 902, 539 N.Y.S.2d 285, 536 N.E.2d 614;  People v. Ortiz, 172 A.D.2d 696, 568 N.Y.S.2d 829).

Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

The Supreme Court properly denied, without a hearing, the defendant's motion pursuant to CPL article 440 to vacate the judgment of conviction (see, CPL 440.30[4][b], [d] ).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.