People v. Turner , 623 N.Y.S.2d 436 ( 1995 )

—Order unanimously reversed on the law, motion denied, verdict reinstated and matter remitted to Supreme Court for sentencing. Memorandum: The jury acquitted defendant of the top two counts of the indictment, charging manslaughter in the first and second degrees as a result of the shooting of defendant’s fiancee. It found defendant guilty, however, of criminal possession of a weapon in the third degree. The trial court erred in granting defendant’s motion for a trial order of dismissal on the criminal possession count (see, CPL 290.10 [1]). Such motion may be granted only if the trial evidence is not legally sufficient to establish the offense charged (see, People v Singh, 191 AD2d 731, Iv denied 81 NY2d 1020; People v Lynch, 116 AD2d 56, 62). Evidence that defendant, who admitted that he had been previously convicted of a crime, engaged in a heated argument with his neighbor, met the neighbor armed with a loaded .22 caliber rifle, pointed the rifle at his neighbor’s head and threatened to "blow [his] damn head off” is sufficient to support the charge of criminal possession of a weapon in the third degree (see, Penal Law § 265.02 [1]; § 265.01 [2]; People v Bumbury, 194 AD2d 735, Iv denied 82 NY2d 714). (Appeal from Order of Supreme Court, Erie County, Doyle, J.—Dismiss Indictment.) Present—Green, J. P., Pine, Wesley, Davis and Boehm, JJ.