PEOPLE v. ZAKRZEWSKI (2004)

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered April 2, 1999 in Albany County, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the third degree and criminal sale of a firearm in the third degree.

Defendant and a codefendant ¹ were convicted of criminal possession of a weapon in the third degree and criminal sale of a firearm in the third degree, following their sale of a Walther PPK .380-caliber handgun to an undercover officer who was conducting a storefront sting operation designed to purchase stolen property and firearms.   Defendant asserts that both convictions should be reversed because Supreme Court did not give a circumstantial evidence charge to the jury and his possession conviction was not supported by legally sufficient evidence.   Finding no merit to either argument, we affirm.

 Assuming, arguendo, that the People's proof of possession and sale was wholly circumstantial, thus entitling defendant to a circumstantial evidence charge (see People v. Daddona, 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014 [1993] ), the issue has not been preserved for appellate review because defendant unequivocally withdrew his request for this charge and failed to object to the charge as given (see CPL 470.05[2];  People v. Burdick, 266 A.D.2d 711, 713, 699 N.Y.S.2d 173 [1999];  People v. Merritt, 265 A.D.2d 733, 734, 698 N.Y.S.2d 735 [1999], lv. denied 94 N.Y.2d 826, 702 N.Y.S.2d 597, 724 N.E.2d 389 [1999] ).   Moreover, given the overwhelming evidence of guilt, we reject defendant's request to reach the issue by exercising our interest of justice jurisdiction.

 Defendant's argument, that his conviction for criminal possession of a weapon in the third degree is not supported by legally sufficient evidence, is based upon the assertion that the People failed to prove that the handgun was loaded.   However, since defendant was charged and convicted under Penal Law § 265.02(1), which does not require that the handgun be loaded, defendant's argument is meritless.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The codefendant's judgment of conviction was affirmed by this Court (People v. Abbott, 275 A.D.2d 481, 711 N.Y.S.2d 611 [2000], lv. denied 96 N.Y.2d 731, 722 N.Y.S.2d 798, 745 N.E.2d 1021 [2001] ).

MUGGLIN, J.

CREW III, J.P., PETERS, SPAIN and LAHTINEN, JJ., concur.