         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
947
KA 11-01832
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LAMONT D. WILLIAMS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (LIAM A. DWYER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Shirley
Troutman, J.), rendered October 20, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree (two counts), menacing a police officer and
loitering.

     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 two counts of criminal possession of a weapon
in the second degree (Penal Law § 265.03 [1] [b]; [3]), and one count
each of menacing a police officer (§ 120.18) and loitering (§ 240.35
[2]). Defendant failed to preserve for our review his contention that
the conviction of one of the two counts of criminal possession of a
weapon and the conviction of menacing a police officer are not
supported by legally sufficient evidence (see People v Gray, 86 NY2d
10, 19) and, in any event, that contention lacks merit. Viewing the
evidence in the light most favorable to the People (see People v
Contes, 60 NY2d 620, 621), we conclude that there is legally
sufficient evidence to establish that defendant intended to use the
revolver unlawfully against another (see § 265.03 [1] [b]; see
generally People v Hunter, 46 AD3d 1417, 1417, lv denied 10 NY3d 812)
and intended to place the officers in reasonable fear of physical
injury, serious physical injury or death (see § 120.18; People v
McCottery, 90 AD3d 1323, 1324-1325). The officers testified that
defendant was ordered to drop his weapon and refused to comply, and
that defendant pointed the gun or waved the gun at the officers as
they pursued him. Viewing the evidence in light of the elements of
the crimes of criminal possession of a weapon in the second degree and
menacing a police officer as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s further contention
                                 -2-                           947
                                                         KA 11-01832

that the verdict with respect to those three counts is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495).

     Defendant’s further contention that he was denied a fair trial by
prosecutorial misconduct is not preserved for our review (see People v
Thomas, 96 AD3d 1670, 1673) and, in any event, is without merit.
Although defendant is correct that the prosecutor improperly cross-
examined a defense witness regarding whether he had been arrested and
the grounds for those arrests (see People v Morrice, 61 AD3d 1390,
1391-1392), that one instance of prosecutorial misconduct was not so
egregious as to deprive defendant of a fair trial (see People v
Szyzskowski, 89 AD3d 1501, 1503). We reject defendant’s contention
that the prosecutor engaged in misconduct during her summation
inasmuch as the comments in question were fair response to the
summation of defense counsel (see People v Rivers, 82 AD3d 1623, 1624,
lv denied 17 NY3d 904; People v Cunningham, 12 AD3d 1131, 1132, lv
denied 4 NY3d 829, reconsideration denied 5 NY3d 761). We reject
defendant’s further contention that he was denied effective assistance
of counsel based on the failure of defense counsel to object to the
alleged instances of prosecutorial misconduct (see People v Tolliver,
93 AD3d 1150, 1151, lv denied 19 NY3d 968; see generally People v
Baldi, 54 NY2d 137, 147).

     Finally, defendant contends that County Court failed to comply
with CPL 270.35 in discharging a sworn juror, requiring reversal.
Defendant, however, consented to the discharge of that juror and
therefore has waived that contention (see People v Barner, 30 AD3d
1091, 1092, lv denied 7 NY3d 809; see also People v Davis, 83 AD3d
860, 861).




Entered:   September 28, 2012                   Frances E. Cafarell
                                                Clerk of the Court
