Opinion
KA 02-00210
March 21, 2003.
Appeal from a judgment of Oneida County Court (Donalty, J.), entered August 7, 2001, convicting defendant after a jury trial of criminal possession of a weapon in the third degree.
V. MICHAEL LICCIONE, WHITESBORO, For Defendant-appellant.
MICHAEL A. ARCURI, DISTRICT ATTORNEY, UTICA (CARL J. BOYKIN Of Counsel), For Plaintiff-respondent.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him of criminal possession of a weapon in the third degree (Penal Law § 265.02 [former (4)]) and sentencing him to a determinate term of incarceration of seven years followed by a three-year period of postrelease supervision. We reject defendant's contention that County Court was obligated to conduct a Rodriguez hearing (see People v. Rodriguez, 79 N.Y.2d 445, 451-453) in addition to the Wade hearing conducted by the court. We reject defendant's further contention that the photo array procedure was unduly suggestive (see People v. Merriweather, 298 A.D.2d 950, lv denied 99 N.Y.2d 561; People v. Bell, 265 A.D.2d 813, lv denied 94 N.Y.2d 916). Finally, we conclude that the sentence is not unduly harsh or severe.