PEOPLE v. BRANDON

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Rodney L. BRANDON, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., MARTOCHE, SMITH, GREEN, AND GORSKI, JJ. Timothy P. Donaher, Public Defender, Rochester (Grazina Myers of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2) ] ) and criminal possession of a weapon in the third degree (§ 265.02 [former (4) ] ).   We reject the contention of defendant that County Court erred in denying his request to charge criminal possession of a weapon in the fourth degree (§ 265.01[1] ) as a lesser included offense of criminal possession of a weapon in the third degree.   The evidence establishes that defendant possessed a loaded firearm within the meaning of Penal Law § 265.00(15), i.e., defendant possessed a firearm and ammunition used to discharge that firearm (see generally People v. Ansare, 96 A.D.2d 96, 468 N.Y.S.2d 269).   We thus conclude that there is no “reasonable view of the evidence which would support a finding that the defendant committed [the] lesser offense but did not commit the greater” (cpl 300.50[1] ).   WE REJECT THE CONtention of defendant that the people were required to establish that he knew that the firearm was loaded (see People v. Smith, 270 A.D.2d 719, 705 N.Y.S.2d 423;  People v. Toribio, 216 A.D.2d 189, 629 N.Y.S.2d 210, lv. denied 87 N.Y.2d 908, 641 N.Y.S.2d 238, 663 N.E.2d 1268).   In any event, that contention lacks merit inasmuch as defendant testified that he knew that there were bullets in the ammunition clip.

Defendant failed to preserve for our review his further contention that the court should have charged criminal possession of a weapon in the fourth degree as a lesser included offense of criminal possession of a weapon in the second degree (see People v. Osorio, 49 A.D.3d 562, 563, 855 N.Y.S.2d 163;   People v. Taylor, 226 A.D.2d 1101, 642 N.Y.S.2d 107, lv. denied 88 N.Y.2d 1025, 651 N.Y.S.2d 24, 673 N.E.2d 1251, 89 N.Y.2d 946, 655 N.Y.S.2d 897, 678 N.E.2d 510), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: