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

The PEOPLE, etc., respondent, v. Torrance D. MAYE, appellant.

Decided: July 28, 2009

STEVEN W. FISHER, J.P., MARK C. DILLON, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ. Marianne Karas, Armonk, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Douglas Noll and Margaret E. Mainusch of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Sullivan, J.), rendered May 4, 2007, convicting him of criminal possession of a weapon in the third degree and leaving the scene of an incident without reporting, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

On June 10, 2006, at approximately 10:00 P.M., an automobile driven by the defendant and owned by his sister collided with a truck on Nassau Road in Roosevelt.   After the defendant briefly approached the driver of the truck, the defendant and his passenger fled on foot, leaving the automobile at the scene.   Within a short time, the police arrived and observed a loaded revolver on the floor of the automobile in front of the driver's seat.   The defendant was arrested two months later and charged, inter alia, with criminal possession of a weapon in the third degree (see Penal Law former § 265.02[4] ).   At the close of the People's case, the defendant argued that the evidence establishing his possession of the revolver was insufficient.   He argued further that the “automobile presumption” contained in Penal Law § 265.15(3) was inapplicable because the revolver was not found while the defendant was in the automobile, but a few minutes later.

On appeal, the defendant claims, inter alia, that the evidence was legally insufficient and that the court improperly instructed the jury on the automobile presumption.   We disagree.   Inasmuch as there was evidence that the defendant was in the car shortly before a gun was discovered in the vehicle under circumstances which made it unlikely that the weapon was placed in the car after the defendant exited, the court properly instructed the jury on the automobile presumption (see People v. Rosenthal, 207 A.D.2d 364, 616 N.Y.S.2d 199;  People v. Heizman, 127 A.D.2d 609, 511 N.Y.S.2d 409;  cf. People v. Thomas, 162 A.D.2d 822, 823-824, 558 N.Y.S.2d 641).   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 of the charged crimes beyond a reasonable doubt (see Matter of Tamara E., 19 A.D.3d 489, 489-490, 798 N.Y.S.2d 447;  People v. O'Brien, 212 A.D.2d 741, 742, 622 N.Y.S.2d 782).   Upon our independent review pursuant to 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's remaining contentions are without merit.

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