PEOPLE v. JOHNSON (2006)

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cowhey, J.), rendered September 4, 2002, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant argues that the trial court erred in failing to instruct the jury on the defense of justification with respect to the counts of the indictment charging him with criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.   However, the defendant's argument is unpreserved for appellate review (see People v. Herring, 282 A.D.2d 546, 722 N.Y.S.2d 887).   In any event, the trial court properly refused to charge the defense of justification (see People v. Pons, 68 N.Y.2d 264, 508 N.Y.S.2d 403, 501 N.E.2d 11;  People v. Almodovar, 62 N.Y.2d 126, 476 N.Y.S.2d 95, 464 N.E.2d 463;  People v. Pritchett, 298 A.D.2d 411, 751 N.Y.S.2d 250;  People v. Abdul-Hakeem, 172 A.D.2d 177, 567 N.Y.S.2d 710).

 The defendant further argues that the trial court erred in failing to instruct the jury on the defense of temporary innocent possession of the subject weapon with respect to the same charges.   However, there was no reasonable view of the evidence upon which the jury could have found that the defendant's possession was innocent (see People v. Williams, 50 N.Y.2d 1043, 431 N.Y.S.2d 698, 409 N.E.2d 1372).

 To the extent that the defendant's claims of ineffective assistance of counsel involve matters dehors the record, they may not be reviewed on direct appeal (see People v. Velazquez, 21 A.D.3d 388, 798 N.Y.S.2d 919;  People v. Campbell, 6 A.D.3d 623, 774 N.Y.S.2d 806).   Insofar as we are able to review the defendant's claims, the defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Sumpter, 27 A.D.3d 590, 810 N.Y.S.2d 374).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).