PEOPLE v. EALEY (2019)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), dated August 6, 2018, convicting him of criminal possession of a weapon in the second degree, criminal possession of marijuana in the fifth degree, and unlawful possession of marijuana, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his conviction of criminal possession of a weapon in the second degree pursuant to Penal Law § 265.03(3) was not supported by legally sufficient evidence is unpreserved for appellate review (see People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946;  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).  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 knowingly possessed a loaded firearm in violation of Penal Law § 265.03(3).  Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to that crime 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's contention that the Supreme Court erred in charging the jury with respect to the automobile presumption set forth in Penal Law § 265.15(3) is unpreserved for appellate review (see CPL 470.05[2];  People v. Warren, 124 A.D.3d 699, 701, 998 N.Y.S.2d 455;  People v. Rodriguez, 187 A.D.2d 465, 466, 589 N.Y.S.2d 524).  In any event, the charge was properly given inasmuch as there was evidence indicating that, between the time the defendant was observed in the car and the time when the gun was discovered, the circumstances were such that it was unlikely that the weapon was placed inside the car after the defendant exited it (see People v. Warren, 124 A.D.3d at 701–702, 998 N.Y.S.2d 455;  People v. Braham, 97 A.D.3d 689, 948 N.Y.S.2d 122;  People v. Maye, 64 A.D.3d 795, 796, 882 N.Y.S.2d 696;  People v. Thomas, 162 A.D.2d 822, 824, 558 N.Y.S.2d 641;  People v. Dowdell, 136 A.D.2d 757, 760, 523 N.Y.S.2d 216;  cf. People v. Astor, 98 Misc.2d 1084, 1089, 415 N.Y.S.2d 354 [Sup. Ct., Bronx County];  People v. Crenshaw, 202 Misc. 179, 117 N.Y.S.2d 202 [Bronx County Ct.] ).

The defendant's contention that a circumstantial evidence charge should have been given is unpreserved for appellate review (see CPL 470.05[2];  People v. Gardner, 164 A.D.3d 602, 78 N.Y.S.3d 689;  People v. Drayton–Archer, 159 A.D.3d 919, 921, 73 N.Y.S.3d 218;  People v. Cruz–Checo, 136 A.D.3d 840, 841, 24 N.Y.S.3d 526).  In any event, the defendant's contention is without merit, as the People's case consisted of both direct and circumstantial evidence (see People v. Hardy, 26 N.Y.3d 245, 249, 43 N.E.3d 734;  People v. Drayton–Archer, 159 A.D.3d at 921, 73 N.Y.S.3d 218;  People v. Cruz–Checo, 136 A.D.3d at 841, 24 N.Y.S.3d 526).

The defendant's contention that he was deprived of a fair trial by certain of the prosecutor's remarks in summation is unpreserved for appellate review, as he failed to request further relief when the Supreme Court gave curative instructions with regard to the challenged remarks (see CPL 470.05[2];  People v. Bass, 164 A.D.3d 1463, 1464, 83 N.Y.S.3d 691;  People v. Bragg, 161 A.D.3d 998, 77 N.Y.S.3d 435).  In any event, to the extent that the challenged remarks were improper, any prejudice from them was alleviated by the court's prompt curative instructions (see People v. Baker, 14 N.Y.3d 266, 274, 899 N.Y.S.2d 733, 926 N.E.2d 240;  People v. Gunn, 144 A.D.3d 1193, 1195–1196, 40 N.Y.S.3d 634;  People v. Badalamenti, 124 A.D.3d 672, 674, 1 N.Y.S.3d 242, affd 27 N.Y.3d 423, 34 N.Y.S.3d 360, 54 N.E.3d 32;  People v. Fuhrtz, 123 A.D.3d 735, 736, 997 N.Y.S.2d 488).

MASTRO, J.P., RIVERA, MILLER and CHRISTOPHER, JJ., concur.