        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

300
KA 09-00283
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PAVEL PRIMAKOV, DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered October 14, 2008. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the first degree, burglary in the third degree and criminal
possession of stolen property in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, criminal possession of a weapon in
the first degree (Penal Law § 265.04 [2]) arising out of an incident
in which defendant and his accomplice burglarized a gun shop and stole
a number of guns. We note that defendant was indicted for that crime
as both a principal and an accomplice (see § 20.00). Following the
burglary, defendant and his accomplice fled by foot over snow-covered
ground. The police apprehended them separately some distance from the
crime scene.

     Defendant contends that his conviction of criminal possession of
a weapon in the first degree is not based on legally sufficient
evidence because the People failed to establish that he possessed the
requisite 10 or more firearms (see Penal Law § 265.04 [2]). We reject
that contention. The proof establishes that 16 guns were stolen
during the burglary and that 13 of those guns qualified as “firearms”
inasmuch as they were pistols or revolvers (see § 265.00 [3]).
Contrary to defendant’s contention, the fact that he did not
personally possess 10 or more of the firearms at the time he was
apprehended does not render the evidence legally insufficient to
support the conviction of criminal possession of a weapon in the first
degree. The record establishes that the 13 firearms removed from the
gun shop were found in the possession of defendant or his accomplice,
were recovered in their immediate vicinity at the time they were
                                 -2-                          300
                                                        KA 09-00283

arrested, or were recovered along the route that one or both of them
took in fleeing from the gun shop. Thus, there was a “valid line of
reasoning and permissible inferences which could lead a rational
person to the conclusion reached by the jury on the basis of the
evidence at trial” (People v Bleakley, 69 NY2d 490, 495; see generally
People v Mateo, 13 AD3d 987, 988, lv denied 5 NY3d 883). Contrary to
defendant’s further contention, viewing the evidence in light of the
element of the crime of criminal possession of a weapon in the first
degree as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict with respect to that crime is not
against the weight of the evidence (see generally Bleakley, 69 NY2d at
495). Finally, we have considered defendant’s remaining contentions
and conclude that none requires reversal or modification of the
judgment.




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
