Opinion
October 2, 1986
Appeal from the Supreme Court, Kings County (Bonomo, J.).
Judgment affirmed.
Contrary to the defendant's contention, the evidence was sufficient to support the jury's verdict convicting him of murder in the second degree and rape in the first degree (see, People v Contes, 60 N.Y.2d 620, 621; People v Bigelow, 106 A.D.2d 448).
We further find without merit the defendant's contention that the crime of criminal possession of a weapon in the third degree is a lesser included offense of the crime of criminal possession of a weapon in the second degree, thereby warranting setting aside his conviction for criminal possession of a weapon in the third degree as an inclusory concurrent count of criminal possession of a weapon in the second degree, pursuant to CPL 300.40 (3) (b). We note that the requirement that the possession not be in the defendant's home or place of business is not an element of the crime of criminal possession of a weapon in the second degree (Penal Law § 265.03; see, People v Ali, 36 N.Y.2d 880, 882; People v Witherspoon, 120 Misc.2d 648; cf. People v Rodriguez, 113 A.D.2d 337, 344 [dissenting opn by Lazer, J.], revd 68 N.Y.2d 674 for reasons stated in dissenting opn of Lazer, J.P., at App. Div.). Accordingly, the setting aside of the defendant's conviction for criminal possession of a weapon in the third degree is not warranted.
The defendant's other claims, including those raised in his pro se brief, are either unpreserved for appellate review or without merit. Lazer, J.P., Thompson, Lawrence and Eiber, JJ., concur.