Opinion
December 19, 1983
Appeal by defendant from a judgment of the Supreme Court, Queens County (Agresta, J.), rendered July 27, 1981, convicting him of criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and indictment dismissed. The case is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. Appellant's conviction, as well as those of his codefendants, arose out of two robberies of Dunkin Donuts stores in Queens. The indictment charged appellant and his codefendants with robbery in the first degree (two counts), robbery in the second degree (two counts), and criminal use of a firearm in the first degree. At trial, the court, sua sponte, charged the jury as to criminal possession of a weapon in the third degree as defined in subdivision (4) of section 265.02 Penal of the Penal Law. One of the elements of that crime is that the firearm be "loaded" within the meaning of subdivision 15 of section 265.00 Penal of the Penal Law. That element of criminal possession of a weapon in the third degree was not an element of any of the crimes charged in the indictment and, accordingly, that crime should not have been charged to the jury ( People v. Green, 56 N.Y.2d 427, 431). With commendable candor, the People concede that the error in the submission of this crime for the jury's consideration goes to subject matter jurisdiction and is not waiveable ( People ex rel. Gray v. Tekben, 86 A.D.2d 176, 180, affd 57 N.Y.2d 651). Since it appears that appellant has already served his sentence, we do not grant leave to the People to resubmit any appropriate charges to another Grand Jury (see People v. Burwell, 53 N.Y.2d 849). Mangano, J.P., O'Connor, Weinstein and Brown, JJ., concur.