People v McCray
2006 NY Slip Op 04446 [30 AD3d 443]
Decided on June 6, 2006
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on June 6, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ROBERT W. SCHMIDT, J.P.
PETER B. SKELOS
ROBERT J. LUNN
MARK C. DILLON, JJ.
2003-06150 DECISION & ORDER

[*1]The People, etc., respondent,

v

Jobie McCray, appellant. (Ind. No. 2009/02)





Lynn W. L. Fahey, New York, N.Y. (John Gemmill of counsel), for
appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove, Morgan J. Dennehy, and
Maria Park of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered October 29, 2003, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a weapon in the third degree beyond a reasonable doubt (see People v Contes, 60 NY2d 620; Penal Law § 265.02[4]; People v Albritton, 204 AD2d 651; People v Livingston, 171 AD2d 759). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5]; People v Garafolo, 44 AD2d 86, 88; People v Clark, 222 AD2d 446).

Although the prosecutor's comments during summation impermissibly shifted the burden of proof to the nontestifying defendant, the comments were harmless in light of the overwhelming evidence against the defendant (see People v Crimmins, 36 NY2d 230, 237; People [*2]v Dardain, 226 AD2d 551; People v Roccaforte, 141 AD2d 775, 776).
SCHMIDT, J.P., SKELOS, LUNN and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court