           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1330
KA 11-00199
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

BARTON DEPAUL, DEFENDANT-APPELLANT.


MARY R. HUMPHREY, NEW HARTFORD, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (William D.
Walsh, A.J.), rendered October 18, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the third degree 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
following a jury trial of criminal possession of a weapon in the third
degree (Penal Law § 265.02 [1]) and menacing in the second degree (§
120.14 [1]), arising from an incident in which defendant pointed a BB
gun at a police officer and demanded the officer’s money. According
to the trial testimony of the officer, the BB gun appeared to be a
real handgun and he feared for his life. On appeal, defendant
contends that the evidence is legally insufficient to establish that
the BB gun was loaded or operable. That contention is unpreserved for
our review because defendant’s motion for a trial order of dismissal
was not specifically directed at that alleged deficiency in the
People’s proof (see People v Gray, 86 NY2d 10, 19). In any event,
because defendant was charged with possessing an “imitation pistol,”
the People were not required to prove that the BB gun was loaded or
operable. The cases relied upon by defendant are distinguishable
because the defendants therein were charged with possessing firearms;
it is well settled, however, that a BB gun is not a firearm (see
People v Wilson, 283 AD2d 339, 340, lv denied 97 NY2d 644; see
generally People v Perez, 93 AD3d 1032, 1038 n 2, lv denied 19 NY3d
1000).



Entered:   December 28, 2012                       Frances E. Cafarell
                                                   Clerk of the Court
