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People v. Gibbs

254 A.D.2d 209 Court N.Y. App. Div. Decision date 1998-10-27 English

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p. 209
The People of the State of New York, Respondent, v Brian Gibbs, Appellant.
[681 NYS2d 10]

Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered April 21, 1995, convicting defendant, after a jury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to concurrent terms of 4V2 to 9 years and 3V2 to 7 years, respectively, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Contrary to defendant’s contentions, possession of an unlicensed, loaded firearm is presumptive evidence of intent to use it unlawfully against another (Penal Law § 265.15 [4]; Matter of John N., 168 AD2d 386 , 387; People v Wooten, 149 AD2d 751 , lv denied 74 NY2d 822 ), which permitted the jury to infer such intent from all of the circumstances of the case (People v Williams, 235 AD2d

p. 210
267 ). Furthermore, the requisite intent was inferable from the evidence that defendant waved the gun and pointed it at the complainant (People v Toribio, 216 AD2d 189 , lv denied 87 NY2d 908 ). Defendant’s argument that the presumption contained in Penal Law § 265.15 (4) should not apply to an unaltered manufactured handgun is unpreserved and we decline to review it in the interest of justice. Were we to review this argument, we would reject it (People v Williams, supra). Concur — Milonas, J. P., Ellerin, Wallach and Tom, JJ.

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