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

872
KA 09-00579
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HENDELL PHILLIPS, DEFENDANT-APPELLANT.


THOMAS J. EOANNOU, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR
DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered March 9, 2009. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree and criminal possession of a weapon in the third
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 criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in
the third degree (§ 265.02 [1]). Defendant failed to preserve for our
review his contention that Supreme Court erred in instructing the jury
on accessorial liability with respect to criminal possession of a
weapon in the second degree (see CPL 470.05 [2]), and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]). Defendant also
failed to preserve for our review his contention that the evidence is
legally insufficient to support the conviction of criminal possession
of a weapon in the second degree inasmuch as his motion for a trial
order of dismissal was not “ ‘specifically directed’ at the alleged
error[s]” now asserted on appeal (People v Gray, 86 NY2d 10, 19). In
any event, that contention is without merit. Defendant contends that
the evidence is legally insufficient to establish that he possessed a
loaded firearm outside of his home or place of business (see Penal Law
§ 265.03 [3]), and that such possession was knowing and unlawful.
Defendant, however, admitted to the police that he sold the gun at
issue to his accomplice and hid the gun on the night of the shooting
upon the accomplice’s request, and the People presented evidence
establishing that defendant’s DNA was found on both the gun and the
bandana wrapped around the gun. The People also presented evidence
                                 -2-                           872
                                                         KA 09-00579

establishing that defendant told the police that the house where the
gun was located was his accomplice’s house; he never told the police
that it was his home and, indeed, there is no evidence to support that
inference. Further, viewing the evidence in light of the elements of
criminal possession of a weapon in the second degree as charged to the
jury (see People v Danielson, 9 NY3d 342, 349), we reject defendant’s
further contention that the verdict is against the weight of the
evidence with respect to that crime (see generally People v
Bleakley, 69 NY2d 490, 495). Finally, the sentence is not unduly
harsh or severe.




Entered:   September 27, 2013                  Frances E. Cafarell
                                               Clerk of the Court
