Opinion
2536, 2536A.
Decided December 18, 2003.
Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered October 5, 1999, convicting defendant, after a jury trial, of two counts of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 15 years to life, unanimously modified, on the law, to the extent of reducing the sentence on the conviction relating to a defaced weapon (Penal Law § 265.02) to 3½ to 7 years, and otherwise affirmed. Order, same court and Justice, entered on or about November 25, 2002, which denied defendant's motion to vacate the judgment pursuant to CPL 440.10, unanimously affirmed.
Madeleine Guilmain, for Respondent.
Steven J. Miraglia Pro Se., for Defendant-Appellant.
Before: Nardelli, J.P., Tom, Andrias, Rosenberger, Friedman, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility, including the weight to be given to inconsistencies in testimony, were properly considered by the jury and there is no basis for disturbing its determinations ( see People v. Gaimari, 176 N.Y. 84, 94).
We decline to invoke our interest of justice jurisdiction to dismiss the non-inclusory concurrent count ( see People v. Spence, 290 A.D.2d 223, lv denied 98 N.Y.2d 641; People v. Kulakov, 278 A.D.2d 519, lv denied 96 N.Y.2d 785).
As the People correctly concede, defendant was improperly sentenced as a persistent violent felony offender on the conviction for criminal possession of a weapon in the third degree under Penal Law § 265.02(3), which relates to defaced weapons, since weapon possession under that subdivision is not classified as a violent felony (Penal Law § 70.02[c]), and we reduce the sentence accordingly. The record does not establish that defendant's sentence was based on any improper criteria and we perceive no basis for any other reduction of sentence.
The court properly denied defendant's motion to vacate judgment. The record establishes that defendant received effective assistance of counsel ( see People v. Benevento, 91 N.Y.2d 708, 713-714; see also Strickland v. Washington, 466 U.S. 668).
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental submissions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.