Circuit Judges. ANGEL ROMERO, Petitioner-Appellant, - v - DANIEL A. SENKOWSKI, Superintendent, Clinton Correctional Facility,, (2nd Cir. 2004)

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 8th day of November, two thousand and four.

PRESENT:

HON. THOMAS J. MESKILL, HON. ROBERT D. SACK, HON. BARRINGTON D. PARKER, JR., Circuit Judges.

ANGEL ROMERO, Petitioner-Appellant, -v- No. 02-2714

DANIEL A. SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent-Appellee.

Appearing for Appellant: VIVIAN SHEVITZ, South Salem, NY.

Appearing for Appellee: ROBERT T. JOHNSON, District Attorney, Bronx County (Joseph N.

Ferdenzi, Stanley R. Kaplan, Argiro Kosmetatos, Assistant District Attorneys, Bronx County), Bronx, NY.

Appeal from the United States District Court for the Southern District of New York (Gerard E. Lynch, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.

The petitioner, Angel Romero, appeals from a judgment of the district court denying his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with respect to his 1997

conviction for criminal possession of a weapon in the third degree in the Supreme Court of New York, Bronx County. Romero v. Senkowski, No. 02 Civ. 1831 (S.D.N.Y. Sept. 18, 2002).

Romero's sole contention on appeal is that the government did not sustain its burden of proving beyond a reasonable doubt that, at the time of the arrest, he was not driving a livery cab, as opposed to an ordinary private automobile. The difference may be critical because one element of the charged offense is that the possession did not "take[] place in such person's home or place of business." N.Y. Penal Law § 265.02(4). Romero contends that a livery cab is a place of business, such that the government bore the burden of proving that he was not driving a cab when he was arrested in order to make out a prima facie case of criminal possession of a weapon in the third degree.

Reviewing de novo the district court's denial of a petition for a writ of habeas corpus, Coleman v. United States, 329 F.3d 77, 81 (2d Cir. 2003), and viewing the evidence in the light most favorable to the prosecution, Jackson v. Virginia, 443 U.S. 307, 319 (1979), we conclude that the evidence was plainly sufficient to satisfy a rational trier of fact beyond a reasonable doubt as to all the elements of the crime, Id.

As both the district court and the Appellate Division pointed out, the government introduced specific testimony that Romero's car was not a cab, and the jury made a reasonable factual determination based on that testimony. Romero, No. 02

Civ. 1831, slip op. at 3; People v. Romero, 280 A.D.2d 316, 316-

17, 720 N.Y.S.2d 145, 146 (First Dep't 2001). Indeed, there was no plausible basis for the jury to have reached any other conclusion. Romero's suggestion that the mere presence of a passenger somehow raises a presumption that the car was a livery cab finds no basis in logic or in fact. Even if we were to accept, for the sake of argument, the proposition that a cab is likely to have a passenger other than its driver, it does not follow logically therefrom that a car with a passenger is likely to be a cab.

We note, finally, that it is not clear, under New York law, that a livery cab qualifies as a "place of business" for purposes of Section 265.02(4). See People v. Francis, 38 N.Y.2d 150, 152, 379 N.Y.S.2d 21, 23 (1975) (noting that the "place of business"

exception has not been "definitively interpreted"). As noted, however, even if it is, the state established that Romero's car was not a cab.

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk By: Date

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