People v. Townsend

• Decision Date: 26 April 2012
• Citation: 94 A.D.3d 1330,943 N.Y.S.2d 276,2012 N.Y. Slip Op. 03234
• Parties: The PEOPLE of the State of New York, Respondents, v. Pierre L. TOWNSEND, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03234
94 A.D.3d 1330
943 N.Y.S.2d 276

The PEOPLE of the State of New York, Respondents,
v.
Pierre L. TOWNSEND, Appellant.

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

April 26, 2012.

[943 N.Y.S.2d 277]

Eugene P. Grimmick, Troy, for appellant.

Richard J. McNally Jr., Troy (Gordon W. Eddy of counsel), for respondents.

Before: ROSE, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.

McCARTHY, J.

[94 A.D.3d 1330] Appeal from a judgment of the County Court of Rensselaer County (Jacon, J.), rendered March 3, 2009, upon a verdict convicting defendant of the crime of criminal possession of a weapon in the second degree.

Following a shooting incident that resulted in the death of defendant's stepuncle (hereinafter the victim), defendant was indicted for the crimes of murder in the second degree, manslaughter in the first degree and criminal possession of a weapon in the second degree. A jury acquitted him of murder and manslaughter, but convicted him of criminal possession of a weapon. County Court sentenced defendant, as a second felony offender, to 15 years in prison followed by five years of postrelease supervision. Defendant appeals.

The verdict was not against the weight of the evidence.¹ Defendant[94 A.D.3d 1331] testified that after he had words with the victim, defendant's stepbrother handed defendant a handgun. They then went to find the victim to work out their problems. Defendant testified that the victim began charging at him and pulled out a gun, causing defendant to run. While running and hearing two shots, defendant pulled out his gun and fired in the direction of those shots without looking. Defendant's stepbrother testified that when defendant took the gun, he stated that he was going to kill the victim. The stepbrother also testified that he never saw a weapon in the victim's hands, defendant shot first and the victim ran from defendant.

The testimony established, and defendant concedes, that he possessed a

[943 N.Y.S.2d 278]

loaded and operable firearm; the issue is whether he intended to use that firearm unlawfully ( see Penal Law § 265.03[1] ). The jury apparently believed that defendant was justified in shooting the victim, resulting in an acquittal of murder and manslaughter. Nevertheless, intent to use a weapon and use of force “are not the same, and justification, by the very words of the statute (Penal Law § 35.15), is limited to the latter” ( People v. Pons, 68 N.Y.2d 264, 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 [1986] ). The weight of the evidence supports a finding that defendant approached the scene intending to use the gun unlawfully against the victim, thereby establishing his commission of criminal possession of a weapon in the second degree, but that defendant's use of force thereafter—even if only moments...