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

682
KA 13-01428
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CYNTHIA HOLES, DEFENDANT-APPELLANT.


MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered August 16, 2013. The judgment convicted
defendant, upon a nonjury verdict, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the facts, the indictment is dismissed and the
matter is remitted to Erie County Court for proceedings pursuant to
CPL 470.45.

     Memorandum: On appeal from a judgment convicting her following a
nonjury trial of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that County Court
misapplied the law to the facts and thereby rendered a verdict that is
against the weight of the evidence. More specifically, defendant
contends that the People failed to prove beyond a reasonable doubt
that her possession of the weapon in question was not temporary and
innocent. We agree with defendant.

     The relevant facts are generally undisputed. Shortly after 6:00
p.m. on August 14, 2011, defendant was walking to a store in Buffalo
with her half-brother, among other people. At the time, defendant was
35 years old, gainfully employed, and had no criminal record. In
fact, she had not previously been arrested. Before reaching the
store, defendant’s half-brother became involved in an argument with a
man who had waved at him and defendant. Defendant unsuccessfully
attempted to persuade her half-brother to walk away from the dispute.
Defendant’s half-brother then handed her a loaded handgun and
assaulted the man and a woman who was with him. Someone called 911
and, when the police arrived minutes later, they reported that the
assailant had possessed a handgun. After stopping defendant’s half-
brother and determining that he did not possess a gun, the police
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                                                         KA 13-01428

stopped defendant, who was still in the vicinity, and discovered the
weapon in her waistband. She was thereafter arrested and charged with
criminal possession of a weapon in the second degree. It is
undisputed that the gun in question belonged to defendant’s half-
brother, who was also charged with criminal possession of a weapon in
the second degree.

     “Under our law, in certain circumstances, the possession of a
weapon may be innocent and not criminal. Innocent possession of a
weapon is possession that is temporary and not for an unlawful
purpose” (CJI2d[NY] Temporary and Lawful Possession; see People v
Almodovar, 62 NY2d 126, 130). “This defense of ‘temporary and lawful’
possession applies because as a matter of policy the conduct is not
deemed criminal” (Almodovar, 62 NY2d at 130). Furthermore, a
“defendant is not required to prove that h[er] possession of the
weapon was innocent. Rather, the People are required to prove beyond
a reasonable doubt both that the defendant knowingly possessed the
weapon and that such possession was not innocent” (CJI2d[NY] Temporary
and Lawful Possession). For this defense to be considered by the
trier of fact, “there must be proof in the record showing a legal
excuse for having the weapon in [one’s] possession as well as facts
tending to establish that, once possession [was] obtained, the weapon
[was] not used in a dangerous manner” (People v Williams, 50 NY2d
1043, 1045; see People v Banks, 76 NY2d 799, 801).

     In determining whether a verdict is contrary to the weight of the
evidence, we must “affirmatively review the record; independently
assess all of the proof; substitute [our] own credibility
determinations for those made by the [factfinder]; determine whether
the verdict was factually correct; and acquit a defendant if [we are]
not convinced that the [factfinder] was justified in finding that
guilt was proven beyond a reasonable doubt” (People v Delamota, 18
NY3d 107, 116-117; see People v Evans, 104 AD3d 1286, 1287). Here,
based on our independent review of the record, and viewing the
evidence in light of the elements of the crime in this nonjury trial
(see People v Danielson, 9 NY3d 342, 349), we conclude that the People
failed to prove beyond a reasonable doubt that defendant’s possession
of the weapon was not temporary and lawful.

     The evidence established that defendant was the involuntary
recipient of the weapon from her half-brother, who was in the process
of starting a fight with strangers. Defendant attempted
unsuccessfully to persuade her half-brother to withdraw from the
altercation, and there is no evidence that she knew that he possessed
a weapon or that the gun was real or loaded. Moreover, defendant did
not use the weapon in a dangerous manner, and she did not have a
sufficient opportunity to dispose of it lawfully. We also note that
defendant testified for the prosecution during the trial of her half-
brother, a predicate felon, who was convicted of possessing the weapon
and sentenced to state prison. Unlike in other cases we have recently
decided involving weapons charges, the evidence here is not “ ‘utterly
at odds with [any] claim of innocent possession’ ” (People v Robinson,
63 AD3d 1634, 1635, lv denied 13 NY3d 799; see People v Smith, 63 AD3d
1655, 1655, lv denied 13 NY3d 839). We thus conclude that the verdict
                                 -3-                           682
                                                         KA 13-01428

is against the weight of the evidence and that the indictment must be
dismissed.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
