People v. Bettis

249 A.D.2d 72, 671 N.Y.S.2d 237, 1998 N.Y. App. Div. LEXIS 3837

Opinion

—Judgment, Supreme Court, Bronx County (Elbert Hinkson, J., at jury trial; Denis Boyle, J., at sentencing), rendered June 13, 1996, convicting defendant of criminal possession of a weapon in the third degree and theft of services, and sentencing him, as a second felony offender, to concurrent prison terms of 3 to 6 years and 5 days, respectively, unanimously affirmed.

Defendant’s claim that the court should have instructed the jury concerning the element of operability in its charge on criminal possession of a weapon is one requiring preservation (People v Henry, 236 AD2d 888, lv denied 90 NY2d 859), which defendant failed to do, and we decline to review this claim in the interest of justice. Were we to review this claim, we would find that the court’s failure to deliver such instruction was error (People v Hechavarria, 158 AD2d 423), but that such error was harmless in light of the overwhelming evidence of operability and absence of any contested issue, concerning that element (People v Tadic, 140 AD2d 651, lv denied 72 NY2d 925). Defendant’s remaining contentions are unpreserved and without merit. Concur — Rosenberger, J. P., Nardelli, Wallach, Rubin and Mazzarelli, JJ.