Opinion
June 5, 1989
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, 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. Thus, it was not error for the court to find him guilty on both counts and impose concurrent terms of imprisonment for both crimes (see, People v. Okafore, 72 N.Y.2d 81, 89, n 3; People v. Ruiz, 144 A.D.2d 599; People v. McGriff, 123 A.D.2d 646, lv denied 69 N.Y.2d 714; People v. Weithers, 123 A.D.2d 456). To the extent that our decision in People v. Jackson ( 140 A.D.2d 458) reached a contrary conclusion, it is hereby overruled.
Because the conviction of both crimes resulted from a single trial pursuant to one indictment and because concurrent sentences were imposed (see, Penal Law § 70.25), the defendant was not subjected to double jeopardy or double punishment (cf., Matter of Johnson v. Morgenthau, 69 N.Y.2d 148).
We further find that the sentencing court did not err by imposing a consecutive term of imprisonment upon his conviction of manslaughter in the first degree (see, Penal Law § 70.25; People v. Robbins, 118 A.D.2d 820, lv denied 67 N.Y.2d 949). "Once the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime" (People v. Almodovar, 62 N.Y.2d 126, 130).
We have reviewed the defendant's remaining contentions and find them to be without merit. Kunzeman, J.P., Rubin, Spatt and Balletta, JJ., concur.