Opinion
November 25, 1997
Appeal from the Supreme Court, Bronx County (Frank Torres, J.).
Defendant's guilt of criminal possession of a weapon in the third degree was proven beyond a reasonable doubt and the verdict was not against the weight of the evidence. There was ample evidence, including defendant's attempt to secrete the loaded pistol in his waistband and admitted intent to take the weapon home, warranting the jury's rejection of the defense of temporary, lawful possession ( see, People v. Banks, 76 N.Y.2d 799).
The court appropriately exercised its discretion in denying defendant's application for a mistrial based on a single, unanswered question posed by the prosecutor to a defense witness regarding defendant's prior record. The court prevented any prejudice by delivering a prompt curative instruction, which it must be presumed was understood and followed by the jury ( see, People v. Shellman, 200 A.D.2d 403, 404, lv denied 83 N.Y.2d 858).
The court's supplementary instructions to the jury were appropriate. The court was not obligated to go beyond the jury's specific request for reinstruction regarding the "definition" of criminal possession of a weapon in the fourth degree, where the jury declined the court's offer to give any further instruction that the jurors might require, and defense counsel did not request reinstruction on the temporary lawful possession defense until after the jury had retired to resume deliberations ( see, People v. Almodovar, 62 N.Y.2d 126, 132). Moreover, the lack of reinstruction on temporary lawful possession could not have affected the jury's deliberations on the charge of criminal possession of a weapon in the third degree, since the court properly instructed the jury, in its main charge, regarding the offered defense ( see, People v. Albino, 104 A.D.2d 317, affd 65 N.Y.2d 843).
Since criminal possession of a weapon in the fourth degree is a lesser included offense of criminal possession of a weapon in the third degree ( People v. Menchetti, 76 N.Y.2d 473, 478), and since, under the circumstances of this case, defendant could not have committed criminal possession of a weapon in the third degree without also committing criminal possession of a weapon in the fourth degree, his conviction of criminal possession of a weapon in the third degree is deemed a dismissal of the inclusory, concurrent charge of criminal possession of a weapon in the fourth degree ( People v. Grier, 37 N.Y.2d 847).
Concur — Milonas, J.P., Rosenberger, Rubin, Williams and Colabella, JJ.