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

473
KA 12-01250
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANDREW CRAIG, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DANIELLE N. D’ABATE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered June 4, 2012. 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 affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]). Contrary to defendant’s
contention, we conclude that the evidence, viewed in the light most
favorable to the People, is legally sufficient to disprove his defense
of temporary and lawful possession of the weapon (see People v Bailey,
111 AD3d 1310, 1311; People v Lucas, 94 AD3d 1441, 1441, lv denied 19
NY3d 964; see generally People v Bleakley, 69 NY2d 490, 495).
Defendant found a loaded gun in a park and took the gun with him when
his father drove him to his mother’s house. A police officer found
the gun concealed in a bag of clothing after initiating a traffic stop
of the vehicle operated by defendant’s father. Although defendant
claimed that he intended to turn the gun in at a church’s gun buy back
program, defendant’s retention of the gun beyond opportunities to hand
it over to the police is “ ‘utterly at odds with any claim of innocent
possession’ ” (People v Griggs, 108 AD3d 1062, 1063, lv denied 21 NY3d
1074; see People v Ward, 104 AD3d 1323, 1324-1325, lv denied 21 NY3d
1011; People v Smith, 63 AD3d 1655, 1655, lv denied 13 NY3d 839).

     We further reject defendant’s contention that the verdict is
against the weight of the evidence. County Court could reasonably
have found that defendant retained possession of the gun despite
having the opportunity to turn it over to lawful authorities (see
People v Hicks, 110 AD3d 1488, 1488; Griggs, 108 AD3d at 1063).
                                 -2-                           473
                                                         KA 12-01250

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 verdict is not against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495).




Entered:   May 2, 2014                         Frances E. Cafarell
                                               Clerk of the Court
