By: Daily Record Staff//September 21, 2023
By: Daily Record Staff//September 21, 2023//
New York State Supreme Court, Appellate Division, Fourth Judicial Department
Criminal possession of a firearm
Appealed from Supreme Court, Monroe County
Background: The defendant appealed from his conviction of two counts of criminal possession of a weapon and endangering the welfare of a child. He argues that the verdict is against the weight of evidence as the gun recovered was inoperable.
Ruling: The Appellate Division affirmed. The court noted that a firearms examiner testified that the revolver was inoperable at the time it was examined because the hammer was stuck in the cocked position. He also testified that unfired cartridges suggested misfire. One of the victims testified that a man fired three shots at them and continued firing but nothing was happening. The Appellate Division held that while a different finding would not have been unreasonable, it cannot be said that the court failed to give the evidence the weight it should be accorded as the witness testimony established the defendant possessed a loaded and operable firearm at the time of the incident.
Michael Jos. Witmer for the defendant-appellant; Martin P. McCarthy II, of the district attorney’s office, for the respondent.