| People v Albritton |
| 2010 NY Slip Op 00526 [69 AD3d 866] |
| January 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamelAlbritton, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J.Twersky of counsel; Kai Fan on the brief), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Hall,J.), rendered August 16, 2006, convicting him of criminal possession of a weapon in the seconddegree and criminal possession of a forged instrument in the second degree (two counts), upon ajury verdict, and imposing sentence, and (2) a resentence of the same court imposed September22, 2006.
Ordered that the judgment and the resentence are affirmed.
The defendant's contention that the trial court erred in failing to instruct the jury on thedefense of justification with respect to the count of the indictment charging him with criminalpossession of a weapon in the second degree is unpreserved for appellate review (seeCPL 470.05 [2]; People v Smith, 54AD3d 421, 422 [2008]; People vWilliams, 38 AD3d 577, 578 [2007]). In any event, the trial court properly refused tocharge the defense of justification with respect to that count (see People v Pons, 68NY2d 264, 265 [1986]; People vSmith, 54 AD3d 421 [2008]; People v Johnson, 30 AD3d 439 [2006]).
Contrary to the defendant's contentions, the Supreme Court properly adjudicated him apersistent violent felony offender based on his 1992 and 1995 convictions (see People v Rodriguez, 49 AD3d903, 904 [2008]; People vAdelman, 36 AD3d 926, 928 [2007]). The defendant is estopped from challenging his1992 conviction because he did not challenge its constitutionality in 1995, when it served as thepredicate for his sentencing as a second violent felony offender (see People v Rodriguez,49 AD3d at 904; People v Adelman, 36 AD3d at 928). Skelos, J.P., Balkin, Leventhaland Lott, JJ., concur.