People v. Hancock

Appellate Division of the Supreme Court of New York

People v. Hancock

43 A.D.3d 1380, 842 N.Y.S.2d 650

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 28, 2007

StatusPublished

Cited by4 cases

This text of 43 A.D.3d 1380 (People v. Hancock) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Hancock, 43 A.D.3d 1380, 842 N.Y.S.2d 650 (N.Y. Ct. App. 2007).

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Opinion

Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered December 6, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unaniniously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), defendant contends that County Court erred in refusing to give a justification charge. We reject that contention. “It is well settled that justification is not a defense to a weapon possession count” (People v White, 168 AD2d 962, 963-964 [1990], lv denied 77 NY2d 968 [1991]). The contention of defendant that a justification charge was proper because he had temporary innocent possession of the weapon is unpreserved for our review (see CPL 470.05 [2]) and, in any event, 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 a lesser included offense of criminal possession of a weapon in the second degree, despite the correct 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 that defendant waived his present contention that the court erred in so charging the jury (see CPL 300.50 [1]; see also [1381]*1381People v Shaffer, 66 NY2d 663, 665 [1985]). We also reject the contention of defendant that he was denied effective assistance of counsel. Although defense counsel asked the court to charge criminal possession of a weapon in the third degree and defendant was convicted of that lesser offense, it cannot be said that defendant was denied meaningful 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 v Satterfield, 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.

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Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered December 6, 2004. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unaniniously affirmed.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), defendant contends that County Court erred in refusing to give a justification charge. We reject that contention. “It is well settled that justification is not a defense to a weapon possession count” (People v White, 168 AD2d 962, 963-964 [1990], lv denied 77 NY2d 968 [1991]). The contention of defendant that a justification charge was proper because he had temporary innocent possession of the weapon is unpreserved for our review (see CPL 470.05 [2]) and, in any event, 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 a lesser included offense of criminal possession of a weapon in the second degree, despite the correct 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 that defendant waived his present contention that the court erred in so charging the jury (see CPL 300.50 [1]; see also [1381]*1381People v Shaffer, 66 NY2d 663, 665 [1985]). We also reject the contention of defendant that he was denied effective assistance of counsel. Although defense counsel asked the court to charge criminal possession of a weapon in the third degree and defendant was convicted of that lesser offense, it cannot be said that defendant was denied meaningful 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 v Satterfield, 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.

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43 A.D.3d 1380, 842 N.Y.S.2d 650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hancock-nyappdiv-2007.

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