PEOPLE v. BARO (1997)

Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered June 8, 1994, convicting defendant, after a jury trial, of manslaughter in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to concurrent terms of 12 1/2 to 25 years and 7 1/2 to 15 years, to run consecutively to a term of 3 1/2 to 7 years respectively, unanimously affirmed.

 The trial court properly admitted testimony that when defendant was arrested, his companion was also arrested and was found to be in possession of drugs.   This did not constitute evidence of an uncharged crime on the part of defendant, and it was relevant to explain that the other individual, who had also been present at the scene of the homicide, evaded the police because he possessed the drugs, and not because he was the killer (see, People v. Villanova, 179 A.D.2d 381, 578 N.Y.S.2d 151, lv. denied, 79 N.Y.2d 954, 583 N.Y.S.2d 208, 592 N.E.2d 816).   Since defendant abandoned his request for a limiting instruction, which had been granted, but omitted, by the court, defendant's present claim of error in that regard is unpreserved (People v. Whalen, 59 N.Y.2d 273, 280, 464 N.Y.S.2d 454, 451 N.E.2d 212) and we decline to review it in the interest of justice.

 Defendant is not entitled to dismissal of the count charging criminal possession of a weapon in the third degree, since it is not a lesser included offense of criminal possession of a weapon in the second degree (People v. Okafore, 72 N.Y.2d 81, 89, n. 3, 531 N.Y.S.2d 762, 527 N.E.2d 245).   To the extent that our decisions in People v. Singh, 190 A.D.2d 640, 594 N.Y.S.2d 165, lv. denied 81 N.Y.2d 1020, 600 N.Y.S.2d 208, 616 N.E.2d 865 and People v. Jackson, 111 A.D.2d 648, 490 N.Y.S.2d 211 have held to the contrary, they are overruled.

 The court did not err in sentencing defendant to a consecutive term of imprisonment for his conviction of criminal possession of a weapon in the third degree since the evidence revealed that his unlawful possession of the gun was punishable separately from his unlawful use of that weapon (People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463).

MEMORANDUM DECISION.