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

443
KA 08-02471
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

DEVEN R. TAYLOR, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County   Court (Richard A.
Keenan, J.), rendered May 8, 2008. The judgment    convicted defendant,
upon a jury verdict, of criminal possession of a   weapon in the second
degree (two counts) 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 two counts of criminal possession of a weapon
in the second degree (Penal Law § 265.03 [1] [b], [3]) and one count
of criminal possession of a weapon in the third degree (§ 265.02 [1]).
Viewing the evidence in light of the elements of the crime 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
contention that the verdict with respect to those counts is against
the weight of the evidence (see generally People v Bleakley, 69 NY2d
490, 495). The People presented evidence establishing that defendant
was observed firing a .22 caliber revolver in the direction of a
pizzeria and that a .22 caliber bullet, which could have been shot
from that revolver, was recovered from the pizzeria. In addition, the
People established that there were no bullet holes in the mailbox of
the pizzeria prior to the incident. Thus, contrary to defendant’s
contention, we conclude that the jury could have reasonably inferred
that, “at some point before the defendant’s apprehension by the police
and the concomitant recovery of the weapon, he possessed a firearm
loaded with operable ammunition” (People v Bailey, 19 AD3d 431, 432,
lv denied 5 NY3d 785).

     By failing to request that the court charge criminal possession
of a weapon in the fourth degree (Penal Law § 265.01 [1]) as a lesser
                                 -2-                           443
                                                         KA 08-02471

included offense of criminal possession of a weapon in the second
degree, defendant failed to preserve for our review his further
contention that the court erred in failing to give such a charge (see
People v Alvarez, 51 AD3d 167, 180, lv denied 11 NY3d 785; People v
Ware, 303 AD2d 173, lv denied 100 NY2d 543). We reject defendant’s
contention that he was denied effective assistance of counsel based on
defense counsel’s failure to request that the court charge the jury
with that lesser included offense (see generally People v Caban, 5
NY3d 143, 152). There is no reasonable view of the evidence that
would allow the jury to conclude, without resorting to speculation,
that defendant committed the lesser offense but not the greater (see
People v Laing, 66 AD3d 1353, 1355, lv denied 13 NY3d 908; see
generally People v Butler, 84 NY2d 627, 631-632, rearg denied 85 NY2d
858).




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
