People v. Rivera (Gasper)

The People of the State of New York, Respondent, against Gasper Rivera, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Abraham L. Clott, J.), rendered March 24, 2011, after a nonjury trial, convicting him of attempted criminal possession of a weapon in the fourth degree, and imposing sentence. Per Curiam. Judgment of conviction (Abraham L. Clott, J.), rendered March 24, 2011, affirmed. The misdemeanor information charging fourth-degree criminal possession of a weapon (see Penal Law § 265.01[1]), was not jurisdictionally defective. The "operability" of the weapon (People v Longshore, 86 NY2d 851 [1995]), a stun gun, was established by sworn allegations that police test-fired the gun at the time it was recovered from defendant and that it "emitted a strong spark between the electrodes of the weapon, indicating a high voltage electric current" (see People v Khoi Dang, 172 Misc 2d 274 [1997]; People v Lynch, 145 Misc 2d 354 [1989]). Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. There was ample evidence of defendant's guilt, including the testimony of two experienced police officers which established that an electronic stun gun was recovered from defendant's front pants pocket, and that said stun gun was operable. We further find that the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348—349 [2007]). We see no reason to disturb the court's determinations concerning credibility. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur Decision Date: December 29, 2016