PEOPLE v. WALCOTT

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Glenn WALCOTT, Defendant-Appellant.

Decided: January 30, 1997

Before MILONAS, J.P., and ELLERIN, RUBIN and MAZZARELLI, JJ. Korey E. Kerscher, for Respondent. Susan J. Horwitz, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Frederic Berman, J.), rendered January 10, 1994, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 8 years to life, 6 years to life and 6 years to life, respectively, unanimously affirmed.

Defendant's conviction of second-degree weapon possession was based on legally sufficient evidence and was not against the weight of the evidence.   The jury was entitled, under the statutory presumption of Penal Law § 265.15(4), to infer an intent to unlawfully use the firearm against another person from the fact of defendant's possession, in his waistband, of the gun containing three live rounds (see, Matter of John N., 168 A.D.2d 386, 387, 563 N.Y.S.2d 397), and such inference was not negated by the evidence.

MEMORANDUM DECISION.