People v. Green

• Decision Date: 12 May 2011
• Citation: 923 N.Y.S.2d 297,84 A.D.3d 1499,2011 N.Y. Slip Op. 03919
• Parties: The PEOPLE of The State of New York, Respondent,v.Lamount GREEN, Appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1499

923 N.Y.S.2d 297

2011 N.Y. Slip Op. 03919

The PEOPLE of The State of New York, Respondent,

v.Lamount GREEN, Appellant.

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

May 12, 2011.

Henry C. Meier, Delmar, for appellant.P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.Before: SPAIN, J.P., LAHTINEN, KAVANAGH, McCARTHY and EGAN JR., JJ.KAVANAGH, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered August 13, 2008, convicting defendant following a nonjury trial of the crime of criminal possession of a weapon in the second degree.

Police in the City of Albany stopped an automobile that had been reported stolen and ordered its three occupants, including defendant who was in the front passenger seat, out of the vehicle. The vehicle was then searched and a loaded semiautomatic .380 caliber handgun was recovered beneath a mat on the floor in front of the back seat. Defendant, who was wearing a bulletproof vest, was arrested and charged with criminal possession of a weapon in the second degree and unauthorized use of a motor vehicle in the third degree. After a nonjury trial, County Court found defendant guilty of criminal possession of a weapon in the second degree and sentenced him, as a second felony offender, to a prison term of 12 years, plus five years of postrelease supervision.¹ Defendant now appeals.

A person is guilty of criminal possession of a weapon in the second degree when he possesses a loaded firearm, unless that possession occurs in the person's home or place of business ( see Penal Law § 265.03[3] ). Here, defendant claims that the People did not prove that the automobile in which the firearm was found was not his residence or place of business and, therefore, his conviction was not supported by legally sufficient evidence. However, defendant never made this argument before County Court in his motion to dismiss and, thus, has not preserved this issue for appellate review ( see People v. Lumnah, 81 A.D.3d 1175, 1177, 917 N.Y.S.2d 412 [2011]; see also People v. Garcia, 79 A.D.3d 1248, 1250, 911 N.Y.S.2d 723 [2010], lv. denied 16 N.Y.3d 797, 919 N.Y.S.2d 514, 944 N.E.2d 1154 [2011] ).

As for defendant's claim that he was deprived of a fair trial by County Court's decision to admit into evidence a picture taken of him when arrested wearing a bulletproof vest, we note that this was not a jury trial and, “[u]nlike a lay jury, a [j]udge[,] by reasons of ... learning, experience and judicial discipline, is uniquely capable of distinguishing the...