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

1104
KA 13-00939
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

ANDRE N. JACKSON, DEFENDANT-APPELLANT.


DONALD R. GERACE, UTICA, 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 (Barry M.
Donalty, J.), rendered February 8, 2013. The judgment convicted
defendant, upon a nonjury verdict, of criminal possession of a weapon
in the second degree and criminal possession of a weapon in the third
degree (two counts).

     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 one count of criminal possession of a weapon
in the second degree (Penal Law § 265.03 [3]) and two counts of
criminal possession of a weapon in the third degree (§ 265.02 [1],
[3]). To the extent that defendant contends on appeal that the
conviction is not supported by legally sufficient evidence, we reject
that contention (see generally People v Bleakley, 69 NY2d 490, 495).
Furthermore, viewing the evidence in light of the elements of the
crimes in this bench 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). The People presented
evidence that defendant was apprehended in proximity to the victim’s
body. The recently-fired revolver, which was defaced, was recovered
within 100 feet of defendant within the secured crime scene, while
defendant’s shoes and socks were located within 13 feet of the
secreted revolver. Furthermore, DNA evidence revealed that it was
probable that defendant had handled the revolver. Although the
recovered ammunition had a firing pin impression, the firearms
examiner successfully discharged the revolver with the recovered
ammunition on his first attempt. Thus, contrary to defendant’s
contention, we conclude that County Court could have reasonably
inferred that, “ ‘at some point before the defendant’s apprehension by
the police and the concomitant recovery of the [defaced revolver], he
possessed a firearm loaded with operable ammunition’ ” (People v
                                 -2-                          1104
                                                         KA 13-00939

Taylor, 83 AD3d 1505, 1506, lv denied 17 NY3d 822; see People v
Cavines, 70 NY2d 882, 883).

     Although defendant challenges the sufficiency of the evidence
before the grand jury, we note that such a challenge is not properly
before us. It is well settled that such a challenge is “not
reviewable on this appeal from the ensuing judgment based upon legally
sufficient trial evidence” (People v Edgeston, 90 AD3d 1535,
1535-1536, lv denied 19 NY3d 973; see CPL 210.30 [6]). Finally,
contrary to defendant’s further contention, we conclude that
defendant’s sentence is not unduly harsh or severe.




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
