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

1386
KA 10-01797
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FABRICE LOWE, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (William D.
Walsh, J.), rendered June 8, 2010. The judgment convicted defendant,
upon a jury verdict, of criminal possession of a weapon in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentence of imprisonment to a determinate term
of five years and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of criminal possession of a weapon in the second degree
(Penal Law § 265.03 [3]), defendant contends that the verdict is
against the weight of the evidence. We reject that contention. The
police found a loaded firearm inside a vehicle in which defendant was
a backseat passenger. The firearm was located on the floor toward the
rear of the driver’s seat, directly in front of where defendant was
seated. County Court properly instructed the jurors that the
statutory presumption of possession set forth in Penal Law § 265.15
(3) applies and, viewing the evidence in light of the elements of the
crime as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not contrary to the weight of
the evidence (see generally People v Bleakley, 69 NY2d 490, 495).
Although a different verdict would not have been unreasonable, it
cannot be said that the jury failed to give the evidence the weight it
should be accorded (see generally id.).

     We reject defendant’s further contention that the court abused
its discretion in refusing to grant him youthful offender status (see
People v Guppy, 92 AD3d 1243, 1243, lv denied 19 NY3d 961; People v
Potter, 13 AD3d 1191, 1191, lv denied 4 NY3d 889), and we decline to
exercise our interest of justice jurisdiction to adjudicate defendant
                                 -2-                          1386
                                                         KA 10-01797

a youthful offender (see Guppy, 92 AD3d at 1243). We agree with
defendant, however, that his sentence, a determinate term of
imprisonment of 10 years plus five years of postrelease supervision,
is unduly harsh and severe. Defendant has no prior criminal record
and, in fact, this was his first arrest. In addition, “it is
undisputed that defendant did not threaten anyone with the weapon or
use it in a violent manner” (People v Atchison, 111 AD3d 1319, 1320).
Under the circumstances, we exercise our discretion to modify the
judgment in the interest of justice by reducing the sentence imposed
to a determinate term of imprisonment of five years (see generally CPL
470.15 [6] [b]), to be followed by the five-year period of postrelease
supervision imposed by the court.

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




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