People v. Kellman , 154 A.D.3d 410 ( 2017 )

People v Kellman (2017 NY Slip Op 06887)

People v Kellman

2017 NY Slip Op 06887

Decided on October 3, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 3, 2017
Sweeny, J.P., Moskowitz, Kahn, Gesmer, JJ.

545/12 4551 4550

[*1]The People of the State of New York, Respondent,

v

Pavette Kellman, Defendant-Appellant.

Deborah Innocent, Richmond Hill, for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J. at pretrial motions; Daniel P. Conviser, J. at jury trial and sentencing), rendered June 25, 2013, as amended January 13, 2016, convicting defendant of criminal possession of a weapon in the third degree, and sentencing her, as a second felony offender, to a term of two to four years, unanimously affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50(5).

Review of defendant's challenge to the sufficiency of the evidence presented to the grand jury is foreclosed by statute (CPL 210.30[6]). To the extent defendant is also claiming that the indictment was facially insufficient, that claim is without merit.

Defendant's challenge to the sufficiency of the trial evidence is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find that the evidence amply established that the weapon recovered from defendant met the definition of a stun gun, in that it was a "device designed primarily as a weapon, the purpose of which is to stun, cause mental disorientation, knock out or paralyze a person by passing a high voltage electric shock to such person" (Penal Law § 265.00[15-c]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 3, 2017

CLERK