People v. Borrell , 155 A.D.2d 290 ( 1989 )

— Judgment, Supreme Court, New York County (Allen Murray Myers, J.), rendered December 2, 1987, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and resisting arrest, and sentencing appellant as a second violent felony offender to an indeterminate term of imprisonment of 3 Vi to 7 years and a definite term of one year, respectively, and consecutively, these sentences to run consecutively to a 90-day sentence imposed after appellant was adjudicated in criminal contempt three times on September 8, 1987, is unanimously affirmed.

Appellant’s conviction arose from his possession of a fully loaded, operable revolver on July 9, 1986. Following a high-speed motor chase, appellant was finally apprehended, after a struggle, in an apartment he had illegally entered. Appellant’s gun was found in the trunk of the livery cab he was driving. Appellant admitted that he had possessed the gun, which he said he kept for protection.

While appellant claims that the court below marshaled the evidence improperly, we find that the evidence and the parties’ contentions were impartially set forth. Appellant also maintains that the court’s charge on the "place of business” element of the crime of third degree gun possession was erroneous. However, as Trial Term found, the question whether the trunk was appellant’s place of business is a question of fact for the jury to determine. Under the instant circumstances, appellant was not entitled to, nor did he request, an instruction that, as a matter of law, the livery cab was a "place of business” for purposes of an exception to a gun possession charge. We have considered appellant’s other claims and find them to be of no merit.

Accordingly, the judgment convicting appellant is affirmed. Concur — Ross, J. P., Carro, Asch, Kassal and Smith, JJ.