Opinion
No. 876 KA 06-00410.
June 5, 2009.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered December 14, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM CLAUSS OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF COUNSEL), FOR RESPONDENT.
Present: Martoche, J.P., Smith, Fahey, Carni and Green, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]), defendant contends that County Court erred in refusing to charge the defense of temporary innocent possession of a weapon.
We reject that contention. The evidence presented at trial established that, rather than relinquishing the gun to the po-lice, defendant fled on foot and threw the weapon onto a roof. Defendant's conduct was "utterly at odds with any claim of innocent possession" ( People v Williams, 50 NY2d 1043, 1045; see People v McCoy, 46 AD3d 1348, 1349-1350, lv denied 10 NY3d 813) and, thus, "`there was no reasonable view of the evidence upon which the jury could have found that the defendant's possession [of the weapon] was innocent'" ( McCoy, 46 AD3d at 1349-1350).