PEOPLE v. LEON (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered October 24, 2003, convicting him of criminal possession of a weapon in the second degree and criminal sale of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the evidence was legally insufficient to establish his guilt of criminal possession of a weapon in the second degree because the prosecution failed to establish that he possessed the weapon with the intent to use it unlawfully is unpreserved for appellate review since he made only a general motion to dismiss and did not raise the specific grounds that he now raises (see CPL 470.05[2];  People v. Santos, 86 N.Y.2d 869, 635 N.Y.S.2d 168, 658 N.E.2d 1041;  People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4;  People v. Carranza, 306 A.D.2d 351, 760 N.Y.S.2d 667).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   There was ample evidence warranting the conclusion that the defendant had the requisite intent when he confronted the victim outside of his apartment building armed with a loaded firearm, notwithstanding that the jury found that the defendant was justified in the actual shooting of the weapon (see People v. Pons, 68 N.Y.2d 264, 508 N.Y.S.2d 403, 501 N.E.2d 11;  People v. Steward, 213 A.D.2d 570, 624 N.Y.S.2d 60;  People v. Bumbury, 194 A.D.2d 735, 599 N.Y.S.2d 826;  People v. Gillespie, 168 A.D.2d 567, 562 N.Y.S.2d 783;  People v. Carrion, 136 A.D.2d 649, 523 N.Y.S.2d 606).   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 The trial court providently exercised its discretion in declining to submit the non-inclusory concurrent count of criminal possession of a weapon in the third degree (see CPL 300.40[3][a], [4];  People v. Totten, 161 A.D.2d 678, 555 N.Y.S.2d 451;  People v. Weithers, 123 A.D.2d 456, 506 N.Y.S.2d 759), particularly after the prosecution consented that it not be submitted (see CPL 300.40[6][a];  People v. Pozo, 261 A.D.2d 144, 692 N.Y.S.2d 3;  People v. Smith, 260 A.D.2d 253, 690 N.Y.S.2d 6;  People v. Pagano, 195 A.D.2d 487, 599 N.Y.S.2d 854;  People v. Tomas, 186 A.D.2d 55, 588 N.Y.S.2d 266).

The defendant's contention that the sentencing court improperly based his sentence on crimes of which he was acquitted or not charged is unpreserved for appellate review (see People v. Harrison, 82 N.Y.2d 693, 601 N.Y.S.2d 573, 619 N.E.2d 651;  People v. Matthews, 1 A.D.3d 530, 767 N.Y.S.2d 268).   In any event, it is without merit.   The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.