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

1369
KA 12-00682
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

                    V                             MEMORANDUM AND ORDER

LAWRENCE HAWKINS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered February 9, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a weapon in
the second degree 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 criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of a weapon in
the third degree (§ 265.02 [1]). Contrary to defendant’s contention,
we conclude that the evidence, viewed in the light most favorable to
the People (see People v Contes, 60 NY2d 620, 621), 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). After disarming
his son, who was drunk and wielding a revolver at a family gathering,
defendant locked the weapon in a garage. Defendant’s own testimony,
however, established that he soon thereafter retrieved the weapon
during the course of a volatile argument with his son, shot his son,
and then fled from the scene and destroyed the weapon rather than wait
and turn it over to the authorities. “Such conduct is ‘utterly at
odds with [defendant’s] claim of innocent possession . . . temporarily
and incidentally [resulting] from . . . disarming a wrongful
possessor’ ” (Bailey, 111 AD3d at 1311; see People v Banks, 76 NY2d
799, 801; People v Gonzalez, 262 AD2d 1061, 1062, lv denied 93 NY2d
1018). Although defendant maintained that he shot his son in self-
defense, we note that “[i]t is well settled that justification is not
a defense to a weapon possession count” (People v Hancock, 43 AD3d
1380, 1380, lv denied 9 NY3d 1034). Furthermore, viewing the evidence
                                 -2-                          1369
                                                         KA 12-00682

in light of the elements of the crimes as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is
not against the weight of the evidence (see People v Hicks, 110 AD3d
1488, 1488-1489; Gonzalez, 262 AD2d at 1061-1062; see generally People
v Bleakley, 69 NY2d 490, 495).

     We reject defendant’s further contention that he was denied
effective assistance of counsel based on defense counsel’s failure to
object to testimony that defendant shot his son in the back (see
generally People v Santiago, 101 AD3d 1715, 1716-1717, lv denied 21
NY3d 946). We conclude that the record, viewed as a whole,
demonstrates that defense counsel provided meaningful representation
(see People v Martinez, 73 AD3d 1432, 1433, lv denied 15 NY3d 807; see
generally People v Baldi, 54 NY2d 137, 147).

     Defendant further contends that he was denied his right to be
present at all material stages of the trial because the record does
not establish that he was present for three sidebar conferences during
voir dire. We reject that contention. “ ‘[A] sidebar interview that
concerns a juror’s background, bias or hostility, or ability to weigh
the evidence objectively is a material stage of trial at which a
defendant has a right to be present . . . , and a waiver by defendant
[of that right] will not be inferred from a silent record’ ” (People v
Cohen, 302 AD2d 904, 905; see CPL 260.20; People v Antommarchi, 80
NY2d 247, 250, rearg denied 81 NY2d 759). “There is[, however,] a
presumption of regularity that attaches to judicial proceedings, and
that presumption may be overcome only by substantial evidence to the
contrary” (People v Chacon, 11 AD3d 906, 907, lv denied 3 NY3d 755;
see People v Foster, 1 NY3d 44, 48). Here, County Court explained to
the prospective jurors that the parties would be present in the jury
room for any sidebar conferences during voir dire, and the record
establishes that defendant was present at the beginning of jury
selection, during the first and third sidebar conferences, and at the
end of jury selection. We conclude with respect to the second sidebar
conference that defendant failed to overcome the presumption of
regularity with substantial evidence of his absence.

     Finally, we agree with the People that defendant failed to
provide a sufficient record to enable us to review the adequacy of the
grand jury instructions (see People v Kinchen, 60 NY2d 772, 773-774;
People v Dixon, 37 AD3d 1124, 1124, lv denied 10 NY3d 764), and that
defendant’s challenge to the sufficiency of the evidence before the
grand jury is foreclosed by his conviction based upon legally
sufficient evidence (see People v Edgeston, 90 AD3d 1535, 1535-1536,
lv denied 19 NY3d 973; see also CPL 210.30 [6]).




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
