Opinion
May 28, 1996
Appeal from the Supreme Court, Kings County (Rivera, 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.
We reject the defendant's contention that he was denied a fair trial by the admission into evidence of a color photograph of the deceased victim. The photograph supported the testimony of the police officer who found the victim, and the medical examiner, and, therefore, was not admitted solely to arouse the emotions of the jury or prejudice the defendant ( see, People v. Wood, 79 N.Y.2d 958; People v. Blagrove, 183 A.D.2d 837; People v. Harris, 149 A.D.2d 433).
The defendant maintains, and the People correctly concede, that his conviction for criminal possession of a weapon in the fourth degree should be dismissed, since it was a lesser included offense of criminal possession of a weapon in the second degree ( see, Penal Law § 265.01; § 265.03; CPL 300.40 [b]; People v. Chatman, 122 A.D.2d 148). We modify the judgment accordingly.
The sentences imposed on the defendant's convictions of criminally negligent homicide and criminal possession of a weapon in the second degree were not excessive ( see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review ( see, CPL 470.05) or without merit. O'Brien, J.P., Santucci, Joy and Florio, JJ., concur.