People v. Totten

• Decision Date: 14 May 1990
• Citation: 161 A.D.2d 678,555 N.Y.S.2d 451
• Parties: The PEOPLE, etc., Respondent, v. Steven TOTTEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 451

555 N.Y.S.2d 451

161 A.D.2d 678

The PEOPLE, etc., Respondent, v. Steven TOTTEN, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 14, 1990.

Steven Totten, Coxsackie, appellant pro se.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Tammy J. Smiley and Pamela L. Milgrim, of counsel), for respondent.

Before BRACKEN, J.P., and BROWN, LAWRENCE and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hellenbrand, J.), rendered November 27, 1985, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, since criminal possession of a weapon in the third degree under Penal Law § 265.02(4), includes the element that the possession not occur in the defendant's home or place of business, that crime is not a lesser included offense of criminal possession of a weapon in the second degree, for which the location of the possession of the weapon is not an element (see, People v. Okafore, 72 N.Y.2d 81, 89, n. 3, 531 N.Y.S.2d 762, 527 N.E.2d 245; People v. Mabry, 151 A.D.2d 507, 542 N.Y.S.2d 297).

In addition, viewing the evidence adduced at the trial in a light most favorable to the People (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 beyond a reasonable doubt. Based upon the testimony of the People's witnesses, the jury could reasonably infer that the defendant's gun was operable. This is so despite the fact that the jury acquitted the defendant of a murder count, which required more than proof that the defendant's gun was operable. Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15[5].