| People v Hancock |
| 2007 NY Slip Op 07184 [43 AD3d 1380] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Winston M.Hancock, Appellant. |
—[*1] Winston M. Hancock, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John J. Connell, J.), renderedDecember 6, 2004. The judgment convicted defendant, upon a jury verdict, of criminalpossession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminalpossession of a weapon in the third degree (Penal Law § 265.02 [4]), defendant contendsthat County Court erred in refusing to give a justification charge. We reject that contention. "It iswell settled that justification is not a defense to a weapon possession count" (People vWhite, 168 AD2d 962, 963-964 [1990], lv denied 77 NY2d 968 [1991]). Thecontention of defendant that a justification charge was proper because he had temporary innocentpossession of the weapon is unpreserved for our review (see CPL 470.05 [2]) and, in anyevent, that contention is without merit (see People v Almodovar, 62 NY2d 126, 130-131[1984]).
Defendant asked the court to charge criminal possession of a weapon in the third degree as alesser included offense of criminal possession of a weapon in the second degree, despite thecorrect responsive statement of the People that it is not in fact a lesser included offense (see People v Leon, 7 NY3d 109,112 [2006]; People v Okafore, 72 NY2d 81, 89 n 3 [1988]). We thus conclude thatdefendant waived his present contention that the court erred in so charging the jury (seeCPL 300.50 [1]; see also People v Shaffer, 66 NY2d 663, 665 [1985]). We alsoreject the contention of defendant that he was denied effective assistance of counsel. Althoughdefense counsel asked the court to charge criminal possession of a weapon in the third degree anddefendant was convicted of that lesser offense, it cannot be said that defendant was deniedmeaningful representation as a result of defense counsel's strategic decision to request that charge(see generally People v Henry, 95 NY2d 563, 565-566 [2000]; People vSatterfield, 66 NY2d 796, 798-799 [1985]; People v Baldi, 54 NY2d 137, 147[1981]). Finally, the sentence is not unduly harsh or severe. Present—Martoche, J.P.,Smith, Peradotto, Green and Pine, JJ.