PEOPLE v. GIBBS

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

The PEOPLE of the State of New York, Respondent, v. Brian GIBBS, Defendant-Appellant.

Decided: October 27, 1998

MILONAS, J.P., ELLERIN, WALLACH and TOM, JJ. Janet Jordon, for Respondent. Frank Brady, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered April 21, 1995, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to concurrent terms of 4 1/2 to 9 years and 3 1/2 to 7 years, respectively, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Contrary to defendant's contentions, possession of an unlicenced, loaded firearm is presumptive evidence of intent to use it unlawfully against another (Penal Law § 265.15 [4];  Matter of John N., 168 A.D.2d 386, 387, 563 N.Y.S.2d 397;  People v. Wooten, 149 A.D.2d 751, 540 N.Y.S.2d 533, lv. denied 74 N.Y.2d 822, 546 N.Y.S.2d 580, 545 N.E.2d 894), which permitted the jury to infer such intent from all of the circumstances of the case (People v. Williams, 235 A.D.2d 267, 653 N.Y.S.2d 296).   Furthermore, the requisite intent was inferable from the evidence that defendant waved the gun and pointed it at the complainant (People v. Toribio, 216 A.D.2d 189, 629 N.Y.S.2d 210 lv. denied 87 N.Y.2d 908, 641 N.Y.S.2d 238, 663 N.E.2d 1268).   Defendant's argument that the presumption contained in Penal Law § 265.15(4) should not apply to an unaltered manufactured handgun is unpreserved and we decline to review it in the interest of justice.   Were we to review this argument, we would reject it (People v. Williams, supra ).

MEMORANDUM DECISION.