Opinion
No. KA 05-00758.
March 14, 2008.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), rendered November 29, 2004. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (GERALD T. BARTH OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Centra, Lunn, Fahey and Green, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15), criminal possession of a weapon in the second degree (former § 265.03 [2]), and criminal possession of a weapon in the third degree (§ 265.02 [former (4)]). As defendant correctly concedes, criminal possession of a weapon in the third degree is not a lesser included offense of criminal possession of a weapon in the second degree ( see People v Okafore, 72 NY2d 81, 89 n 3 [1988]; People v Saulters, 255 AD2d 896, lv denied 92 NY2d 1038), and we decline his invitation to modify the judgment by reversing the conviction of criminal possession of a weapon in the third degree. Contrary to defendant's further contentions, the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495), and the sentence is not unduly harsh or severe.