People v. Mike, PLAINTIFF-RESPONDEN

• Decision Date: 02 May 2001
• Docket Number: DEFENDANT-APPELLANT,PLAINTIFF-RESPONDEN,V
• Citation: 724 N.Y.S.2d 389,283 A.D.2d 989
• Parties: (A.D. 4 Dept. 2001) PEOPLE OF THE STATE OF NEW YORK,CHARLES MIKE, KA 99-1561. (Onondaga Co.) : FOURTH JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 389

724 N.Y.S.2d 389 (A.D. 4 Dept. 2001)

PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT,

V

CHARLES MIKE, DEFENDANT-APPELLANT.

KA 99-1561. (Onondaga Co.)

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

May 2, 2001

Philip Rothschild, for defendant-appellant.

James P. Maxwell, for plaintiff-respondent.

Memorandum:

We reject the contention of defendant that the verdict finding him guilty of criminal possession of a weapon in the second degree (Penal Law former § 265.03) is against the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495). There is no support in the record for his contention that he acted in self defense. In any event, justification is not a defense to a charge of criminal possession of a weapon in the second degree (see, People v Pons, 68 N.Y.2d 264, 267; People v Sebak, 270 A.D.2d 166, 167, lv denied 95 N.Y.2d 803).

Defendant also contends that the verdict finding him guilty of assault in the second degree (Penal Law § 120.05) is against the weight of the evidence with respect to the element of intent to cause serious physical injury. We disagree. Intent may be "inferred from the totality of conduct of the accused" (People v Horton, 18 N.Y.2d 355, 359, mot to amend remittitur granted 19 N.Y.2d 600, cert denied 387 U.S. 934), and it cannot be said that the jury failed to give the evidence the weight that it should be accorded in that respect (see, People v Bleakley, supra, at 495).

We conclude that defendant received meaningful representation (see, People v Baldi, 54 N.Y.2d 137, 147) and that the sentence imposed is not unduly harsh or severe. We reject defendant's contention that the preservation requirements of the Criminal Procedure Law are unconstitutional (see, People v Peters, 249 A.D.2d 987, 988, lv denied 92 N.Y.2d 903). Finally, we conclude that Supreme Court properly denied defendant's motion to suppress identification testimony by the victim. The victim previously knew defendant, and thus the identification was merely confirmatory (see, People v Thomas, 272 A.D.2d 892, 894, lv denied 95 N.Y.2d 858).

Judgment unanimously affirmed. (Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J. - Criminal Possession Weapon, 2nd Degree.)

PIGOTT, JR., P. J., WISNER, SCUDDER, KEHOE AND BURNS, JJ., concur.