| People v Brandon |
| 2008 NY Slip Op 10390 [57 AD3d 1489] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rodney L.Brandon, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedSeptember 8, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of aweapon in the second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [former (2)]) and criminalpossession of a weapon in the third degree (§ 265.02 [former (4)]). We reject the contention ofdefendant that County Court erred in denying his request to charge criminal possession of a weapon inthe fourth degree (§ 265.01 [1]) as a lesser included offense of criminal possession of a weaponin the third degree. The evidence establishes that defendant possessed a loaded firearm within themeaning of Penal Law § 265.00 (15), i.e., defendant possessed a firearm and ammunition usedto discharge that firearm (see generally People v Ansare, 96 AD2d 96 [1983]). We thusconclude that there is no "reasonable view of the evidence which would support a finding that thedefendant committed [the] lesser offense but did not commit the greater" (CPL 300.50 [1]). We rejectthe contention of defendant that the People were required to establish that he knew that the firearm wasloaded (see People v Smith, 270 AD2d 719 [2000]; People v Toribio, 216 AD2d189 [1995], lv denied 87 NY2d 908 [1995]). In any event, that contention lacks meritinasmuch as defendant testified that he knew that there were bullets in the ammunition clip.
Defendant failed to preserve for our review his further contention that the court should havecharged criminal possession of a weapon in the fourth degree as a lesser included offense of criminalpossession of a weapon in the second degree (see People v Osorio, 49 AD3d 562, 563 [2008]; People vTaylor, 226 AD2d 1101 [1996], lv denied 88 NY2d 1025 [1996], 89 NY2d 946[1996]), and we decline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Finally, the sentence is not unduly harsh or severe.Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.