People v. Holes

• Decision Date: 20 June 2014
• Citation: 2014 N.Y. Slip Op. 04643,118 A.D.3d 1466,988 N.Y.S.2d 375
• Parties: The PEOPLE of the State of New York, Respondent, v. Cynthia HOLES, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1466

988 N.Y.S.2d 375

2014 N.Y. Slip Op. 04643

The PEOPLE of the State of New York, Respondent,

v.Cynthia HOLES, Defendant–Appellant.

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

June 20, 2014.

Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.

PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, and DeJOSEPH, JJ.

MEMORANDUM:

On appeal from a judgment convicting her following a nonjury trial of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ), defendant contends that County Court misapplied the law to the facts and thereby rendered a verdict that is against the weight of the evidence. More specifically, defendant contends that the People failed to prove beyond a reasonable doubt that her possession of the weapon in question was not temporary and innocent. We agree with defendant.

The relevant facts are generally undisputed. Shortly after 6:00 p.m. on August 14, 2011, defendant was walking to a store in Buffalo with her half-brother, among other people. At the time, defendant was 35 years old, gainfully employed, and had no criminal record. In fact, she had not previously been arrested. Before reaching the store, defendant's half-brother became involved in an argument with a man who had waved at him and defendant. Defendant unsuccessfully attempted to persuade her half-brother to walk away from the dispute. Defendant's half-brother then handed her a loaded handgun and assaulted the man and a woman who was with him. Someone called 911 and, when the police arrived minutes later, they reported that the assailant had possessed a handgun. After stopping defendant's half-brother and determining that he did not possess a gun, the police stopped defendant,who was still in the vicinity, and discovered the weapon in her waistband. She was thereafter arrested and charged with criminal possession of a weapon in the second degree. It is undisputed that the gun in question belonged to defendant's half-brother, who was also charged with criminal possession of a weapon in the second degree.

“Under our law, in certain circumstances, the possession of a weapon may be innocent and not criminal. Innocent possession of a weapon is possession that is temporary and not for an unlawful purpose” (CJI2d[N.Y.] Temporary and Lawful Possession; see People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463). “This defense of ‘temporary and lawful’ possession applies because as a matter of policy the conduct is not deemed criminal” ( Almodovar, 62 N.Y.2d at 130, 476 N.Y.S.2d 95, 464 N.E.2d 463). Furthermore, a “defendant is not required to prove that h[er] possession of the weapon was innocent. Rather, the People are required to prove beyond a reasonable doubt both that the defendant knowingly possessed the weapon and that such possession was not innocent” (CJI2d[N.Y.] Temporary and Lawful Possession). For this defense to be considered by the trier of fact, “there must be proof in the record showing a legal excuse for having the weapon in [one's] possession as well as facts tending to establish that, once possession [was] obtained, the weapon [was] not used in a dangerous manner” ( People v. Williams, 50 N.Y.2d 1043, 1045, 431 N.Y.S.2d 698, 409 N.E.2d 1372;see People v. Banks, 76 N.Y.2d 799, 801, 559 N.Y.S.2d 959, 559 N.E.2d 653).

In determining whether a verdict is contrary to the weight of the evidence, we must “affirmatively review the record; independently assess all of the proof; substitute [our] own credibility determinations for those made by the [factfinder]; determine whether the verdict was factually correct; and acquit a defendant if [we are] not convinced that the [factfinder] was justified in finding that guilt was proven beyond a...