People v Aracil

People v Aracil 2007 NY Slip Op 08877 [45 AD3d 401] November 15, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent,
v
Bertha Aracil, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York City (Peter Theis of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Nancy D. Killian of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered April 26, 2006, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree, and sentencing her to a term of five years, unanimously affirmed.

The court properly denied defendant's request for a charge on the defense of temporary and lawful possession. There was no reasonable view of the evidence, viewed in a light most favorable to defendant (see People v Steele, 26 NY2d 526, 529 [1970]), to support such a charge. According to defendant, she first acquired the weapon by picking it up from the ground after it fell from the waistband of a man with whom she was struggling, and then proceeded to enter an apartment building with the loaded weapon in her hand, for the purpose of intervening in a fight between her stepfather and other persons. Although her initial acquisition of the weapon could be deemed justified, her subsequent act, which introduced a loaded firearm into a volatile situation, was "utterly at odds with any claim of innocent possession . . . temporarily resulting from disarming a wrongful possessor" (see People v Banks, 76 NY2d 799, 801 [1990] [internal quotation marks and citations omitted]). To the extent that defendant is claiming that she was constitutionally entitled to a jury charge on this defense, that claim is unpreserved and we decline [*2]to review it in the interest of justice. Were we to review this claim, we would find it without merit.

We perceive no basis for reducing the sentence. Concur—Andrias, J.P., Marlow, Williams, Buckley and Malone, JJ.