Opinion
April 5, 1993
Appeal from the Supreme Court, Queens County (Lonschein, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of criminal possession of a weapon in the fourth degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The charges arose out of an incident that occurred at the Edgemere Housing Projects located in Rockaway, Queens County, in which the defendant was observed by a police officer dropping a loaded .38 caliber firearm to the ground. The officer recovered the firearm and saw that the gun's serial number had been removed.
Viewing the evidence adduced at trial in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The prosecution clearly established that the defendant knowingly possessed a loaded firearm which had been defaced. Moreover, issues of credibility, as well as the weight accorded to the evidence presented, are primarily questions to be determined by the jury (see, People v Gaimari, 176 N.Y. 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 A.D.2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The defendant however, is correct in his assertion that his conviction of criminal possession of a weapon in the fourth degree must be dismissed pursuant to CPL 300.40 (3) (b).
Specifically, CPL 300.40 (3) (b) provides as follows: "With respect to inclusory concurrent counts, the court must submit the greatest or inclusive count and may or must, under circumstances prescribed in section 300.50, also submit, but in the alternative only, one or more of the lesser included counts. A verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted" (emphasis supplied).
In People v Lee ( 39 N.Y.2d 388), the Court of Appeals dismissed a lesser inclusory concurrent count pursuant to CPL 300.40 (3) (b), even though the issue was not preserved for appellate review. In People v Reid ( 58 A.D.2d 611), this Court, relying on People v Lee (supra), dismissed a lesser inclusory concurrent count pursuant to CPL 300.40 (3) (b), "on the law", although the issue was not preserved for appellate review (see also, People v Velasquez, 178 A.D.2d 451; People v Rodriguez, 126 A.D.2d 681). To the extent that prior decisions of this Court have held that preservation of this issue is necessary to obtain appropriate relief on the law (see, e.g., People v Jones, 186 A.D.2d 585; People v Herbert, 182 A.D.2d 639; People v Poe, 158 A.D.2d 558; People v Stanley, 133 A.D.2d 654; People v Josey, 131 A.D.2d 699), they are hereby overruled.
Finally, we find that the defendant's sentence was not excessive (see, People v Suitte, 90 A.D.2d 80). Rosenblatt, J.P., Lawrence, Pizzuto and Santucci, JJ., concur.