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

618
KA 11-01397
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PERRY GRIGGS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

PERRY GRIGGS, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered June 9, 2011. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that Supreme Court erred
in denying his motion to dismiss the indictment based upon alleged
prosecutorial misconduct before the grand jury. According to
defendant, the prosecutor improperly questioned him about his prior
criminal convictions and failed to instruct the grand jurors properly
with respect to the defense of temporary innocent possession. We
reject defendant’s contention. With respect to the alleged
prosecutorial misconduct, we note that the prosecutor was entitled to
cross-examine defendant on issues concerning his credibility (see
People v Thomas, 213 AD2d 73, 76, affd 88 NY2d 821) and, because
defendant’s criminal record “clearly demonstrated his willingness to
place his own interests above those of society, [it] was thus a proper
subject for cross-examination” (People v Burton, 191 AD2d 451, 451, lv
denied 81 NY2d 1011). With respect to the instruction on the defense
of temporary innocent possession, we note that it is almost identical
to the instruction set forth in the Pattern Jury Instructions (see
CJI2d[NY] Temporary and Lawful Possession). Defendant raises several
other contentions regarding the conduct of the prosecutor during the
grand jury proceedings, but they are similarly without merit.
                                 -2-                           618
                                                         KA 11-01397

     We reject defendant’s further contention that the court erred in
permitting defendant’s ex-girlfriend to testify that she observed him
in possession of the firearm in question on the night before his
arrest. That testimony was relevant to defendant’s defense of
temporary innocent possession of the weapon. We agree with defendant,
however, that the court erred in permitting his ex-girlfriend to
testify concerning prior drug sales and acts of domestic violence.
That testimony was not relevant to a material issue at trial and,
furthermore, its probative value was outweighed by its prejudicial
effect (see generally People v Cass, 18 NY3d 553, 559). Nevertheless,
we conclude that the error is harmless (see People v Bounds, 100 AD3d
1523, 1524, lv denied 20 NY3d 1096; People v Taylor, 97 AD3d 1139,
1141, lv denied 19 NY3d 1029; see generally People v Crimmins, 36 NY2d
230, 241-242). Defendant, by his own admission, possessed the loaded
firearm, and the only disputed issue at trial was whether the defense
of temporary and innocent possession applied. Even assuming,
arguendo, that the jurors accepted defendant’s seemingly implausible
claim that he wrestled the gun away from a man who was trying to rob
him, we conclude that the defense of temporary innocent possession
does not apply because defendant “ ‘made no effort to turn the [gun]
over to the police’ ” after he obtained possession of it (People v
Ward, 104 AD3d 1323, 1325; see People v McCoy, 46 AD3d 1348, 1349-
1350, lv denied 10 NY3d 813). Instead, defendant hid the gun under a
fence in a vacant lot and then remained silent while the police were
searching the vacant lot, conduct that was “utterly at odds with any
claim of innocent possession” (McCoy, 46 AD3d at 1350 [internal
quotation marks omitted]).

     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 also reject defendant’s
contention that the verdict is against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495; People v Rumph, 93 AD3d
1346, 1347, lv denied 19 NY3d 967). Indeed, our “independent review
of the evidence reveals that a different verdict would have been
unreasonable” (People v Johnson, 24 AD3d 803, 804; see People v
Peters, 90 AD3d 1507, 1508, lv denied 18 NY3d 996; see generally
Bleakley, 69 NY2d at 495).

     We have reviewed the remaining contentions set forth in
defendant’s main and pro se supplemental briefs and conclude that none
warrants modification or reversal.




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
