People v. Vaccaro

44 N.Y. 885

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Although the elements of criminal possession of a weapon in the second and fourth degrees (Penal Law, §§ 265.03, 265.01) are identical in those circumstances where the culpable act is possession of a loaded firearm, the overlapping of elements does not render the statutes unconstitutional. (People v Eboli, 34 NY2d 281.) Since by statutory definition criminal possession of a weapon in the fourth degree is a lesser included offense of criminal possession of a weapon in the second degree (CPL 1.20, subd 37), the court correctly dismissed the charge of criminal possession of a weapon in the fourth degree because there was no "reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater.” (CPL 300.50, subd 1.)

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed in a memorandum.