People v. Dilone

Judgment, Supreme Court, New York County (Carol Berk-man, J), rendered December 20, 2006, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms of nine and seven years, respectively, unanimously affirmed.

Defendant’s challenge to the sufficiency of the evidence supporting his conviction of second-degree weapon possession is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we also find that the evidence of defendant’s intent to use the weapon unlawfully was legally sufficient in light of the statutory presumption of unlawful intent (Penal Law § 265.15 [4]), which the court properly submitted to the jury. We further find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]).

The court properly exercised its discretion in denying defendant’s mistrial motion, made on the basis of a portion of the prosecutor’s summation that allegedly misstated the law. Any possible confusion in this regard was prevented by the court’s correct and thorough jury instruction on the particular subject at issue.

We decline to vacate the third-degree possession conviction in the interest of justice.

We perceive no basis for reducing the sentence. Concur— Tom, J.P., Saxe, Sweeny, Acosta and Freedman, JJ.