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

1336
KA 13-00745
PRESENT: CENTRA, J.P., FAHEY, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LONNIE SPEARS, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered November 13, 2012. 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: 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]). Defendant was indicted for his
alleged involvement in a robbery and burglary, but the jury convicted
him only of the single weapons count.

     Defendant made only a general motion to dismiss the indictment
for “facial insufficiency,” and he thus failed to preserve for our
review the contentions he now advances on appeal (see People v Gray,
86 NY2d 10, 20-21; People v Morris, 217 AD2d 941, 941, lv denied 87
NY2d 849; see generally CPL 200.50 [7]), and we decline to exercise
our power to review those contentions as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). In addition,
defendant’s contention that the indictment did not adequately specify
the county in which the alleged crime occurred is raised for the first
time in his reply brief and is therefore not properly before us (see
Matter of Sedita v Sacha, 99 AD3d 1259, 1260).

     Defendant contends that the evidence is not legally sufficient to
support the conviction inasmuch as the People failed to adduce any
evidence at trial that the firearm at issue was operable and loaded
with live ammunition. That contention is not preserved for our review
(see Gray, 86 NY2d at 19) and, in any event, lacks merit. Although
the firearm was never recovered, we conclude that the People supplied
the necessary proof through circumstantial evidence, i.e., “eyewitness
                                 -2-                          1336
                                                         KA 13-00745

testimony and surrounding circumstances” (People v Samba, 97 AD3d 411,
414, lv denied 20 NY3d 1065). Viewing the evidence in light of the
elements of the crime as charged to the jury, we reject defendant’s
further contention that the verdict is against the weight of the
evidence (see People v Danielson, 9 NY3d 342, 349; People v Bleakley,
69 NY2d 490, 495).

     Defendant failed to preserve for our review his further
contention that the verdict is repugnant inasmuch as he failed to
object to the alleged repugnancy of the verdict before the jury was
discharged (see People v Ali, 89 AD3d 1417, 1420, lv denied 18 NY3d
922; see also People v Lurcock, 219 AD2d 797, 798, lv denied 88 NY2d
881). In any event, we conclude that the contention lacks merit (see
People v Tucker, 55 NY2d 1, 7, rearg denied 55 NY2d 1039; People v
McLaurin, 50 AD3d 1515, 1516; see also People v Clanton, 19 AD3d 1035,
1035-1036, lv denied 5 NY3d 804).

     The sentence is not unduly harsh or severe. We have examined
defendant’s remaining contentions and conclude that they lack merit.




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
