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

1275
KA 15-01475
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER A. TYLER, DEFENDANT-APPELLANT.


WILLIAM MASELLI, PORTLAND, MAINE, OF THE MAINE BAR, ADMITTED PRO HAC
VICE, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered July 22, 2015. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree (three counts) and menacing 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 three counts of criminal possession of a weapon
in the second degree (Penal Law § 265.03 [1] [b]; [3]) and one count
of menacing in the second degree (§ 120.14 [1]). Defendant failed to
preserve for our review his contention that he was deprived of a fair
trial by comments the prosecutor made during his opening statement
(see CPL 470.05 [2]; People v Cullen, 110 AD3d 1474, 1475, affd 24
NY3d 1014). Defendant also failed to preserve for our review the
majority of instances of alleged prosecutorial misconduct on summation
(see People v Justice, 99 AD3d 1213, 1216, lv denied 20 NY3d 1012)
and, in any event, we conclude that the prosecutor’s summation was
either fair response to defense counsel’s summation (see People v
Melendez, 11 AD3d 983, 984, lv denied 4 NY3d 888), or fair comment on
the evidence (see People v Graham, 125 AD3d 1496, 1498, lv denied 26
NY3d 1008). Even assuming, arguendo, that any of the prosecutor’s
comments during his opening statement or on summation were improper,
we further conclude that they were not so egregious as to deprive
defendant of a fair trial (see People v Figgins, 72 AD3d 1599, 1600,
lv denied 15 NY3d 893; People v Sweney, 55 AD3d 1350, 1351, lv denied
11 NY3d 901). Defendant’s contention that the prosecutor engaged in
misconduct during his examination of the complaining witness and
during cross-examination is without merit.

     Defendant contends that the court erred in instructing the jury
                                 -2-                          1275
                                                         KA 15-01475

that justification is not a defense to counts one and four of the
indictment, which charged him with criminal possession of a loaded
firearm with intent to use it unlawfully against another and menacing,
respectively (Penal Law §§ 265.03 [1] [b]; 120.14 [1]). We reject
that contention. As defendant correctly concedes, “because possession
of a weapon does not involve the use of physical force . . . , there
are no circumstances when justification (Penal Law § 35.15) can be a
defense to the crime of criminal possession of a weapon” (People v
Pons, 68 NY2d 264, 267). In addition, with respect to both counts one
and four, “[i]t is well settled that, ‘[i]n evaluating a challenged
jury instruction, we view the charge as a whole in order to determine
whether a claimed deficiency in the jury charge requires reversal . .
. ’ Reversal is appropriate—even if the standard criminal jury
instruction is given—when the charge, ‘read . . . as a whole against
the background of the evidence produced at the trial,’ likely confused
the jury regarding the correct rules to be applied in arriving at a
decision” (People v Walker, 26 NY3d 170, 174-175). Here, we conclude
that the court’s instructions, viewed in their entirety, “fairly
instructed the jury on the correct principles of law to be applied to
the case and do[ ] not require reversal” (People v Ladd, 89 NY2d 893,
896; see People v Coleman, 70 NY2d 817, 819).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
