PEOPLE v. GRANT

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

The PEOPLE, etc., respondent, v. Shawn GRANT, appellant.

Decided: September 23, 2008

ROBERT A. LIFSON, J.P., ANITA R. FLORIO, RANDALL T. ENG, and ARIEL E. BELEN, JJ. Gary M. Gash, White Plains, N.Y. (Neal D. Futerfas of counsel), for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Valerie A. Livingston, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Molea, J.), rendered May 16, 2003, convicting him of criminal possession of a weapon in the second degree and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's challenge to the legal sufficiency of the evidence on his conviction of criminal possession of a weapon in the second degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Carranza, 306 A.D.2d 351, 352, 760 N.Y.S.2d 667, affd. 3 N.Y.3d 729, 786 N.Y.S.2d 381, 819 N.E.2d 997;  People v. Rodriguez, 200 A.D.2d 775, 607 N.Y.S.2d 100;  People v. Udzinski, 146 A.D.2d 245, 250, 541 N.Y.S.2d 9).   In any event, 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 criminal possession of a weapon in the second degree beyond a reasonable doubt.   The People presented the requisite evidence establishing that the defendant possessed a loaded operable weapon with the intent to use it unlawfully against another (see People v. Hunter, 46 A.D.3d 1417, 848 N.Y.S.2d 480;  People v. Pricher, 221 A.D.2d 378, 633 N.Y.S.2d 1009).   Moreover, upon the exercise of our factual review power (see 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 contention that a detective's testimony that the victim named the defendant as the shooter was inadmissible as an excited utterance was waived when the defense elicited the same testimony on cross-examination (see People v. Holmes, 47 A.D.3d 946, 850 N.Y.S.2d 571;  People v. Blackman, 13 A.D.3d 640, 789 N.Y.S.2d 57).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.

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