People v. DePass

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Meyerson, J.), rendered November 8, 1985, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s argument that he was entitled to have the jury instructed on the defense of temporary innocent possession of a weapon (1 CJI [NY] 9.65) is unpreserved for appellate review. In any event, although there was evidence from which the jury could have concluded that there was a legal excuse for the defendant having the weapon in his possession, since the defendant admits that he shot the deceased twice, the weapon was used in a dangerous manner, and thus an innocent possession charge was not warranted (see, People v Williams, 50 NY2d 1043). The defendant’s claim that the jury’s verdict was repugnant similarly is not preserved for our review since no objection was made prior to the discharge of the jury (see, People v Alfaro, 66 NY2d 985) and, in any event, is without merit (see, People v Glass, 55 NY2d 834; People v Bell, 125 AD2d 319; see also, People v Pons, 68 NY2d 264). We have considered the defendant’s other contentions and find them to be either unpreserved for appellate review or without merit. Bracken, J. P., Brown, Rubin and Spatt, JJ., concur.