PEOPLE v. HANCOCK

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

The PEOPLE of the State of New York, Respondent, v. Winston M. HANCOCK, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  MARTOCHE, J.P., SMITH, PERADOTTO, GREEN, AND PINE, JJ. Edward J. Nowak, Public Defender, Rochester (William Clauss of Counsel), for Defendant-Appellant. Winston M. Hancock, Defendant-Appellant Pro Se. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Respondent.

 On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4] ), defendant contends that County Court erred in refusing to give a justification charge.   We reject that contention.  “It is well settled that justification is not a defense to a weapon possession count” (People v. White, 168 A.D.2d 962, 963-964, 565 N.Y.S.2d 344, lv. denied 77 N.Y.2d 968, 570 N.Y.S.2d 502, 573 N.E.2d 590).   The contention of defendant that a justification charge was proper because he had temporary innocent possession of the weapon is unpreserved for our review (see CPL 470.05[2] ) and, in any event, that contention is without merit (see People v. Almodovar, 62 N.Y.2d 126, 130-131, 476 N.Y.S.2d 95, 464 N.E.2d 463).

 Defendant asked the court to charge criminal possession of a weapon in the third degree as a lesser included offense of criminal possession of a weapon in the second degree, despite the correct responsive statement of the People that it is not in fact a lesser included offense (see People v. Leon, 7 N.Y.3d 109, 112, 817 N.Y.S.2d 619, 850 N.E.2d 666;  People v. Okafore, 72 N.Y.2d 81, 89 n. 3, 531 N.Y.S.2d 762, 527 N.E.2d 245).   We thus conclude that defendant waived his present contention that the court erred in so charging the jury (see CPL 300.50[1];  see also People v. Shaffer, 66 N.Y.2d 663, 665, 495 N.Y.S.2d 965, 486 N.E.2d 823).   We also reject the contention of defendant that he was denied effective assistance of counsel.   Although defense counsel asked the court to charge criminal possession of a weapon in the third degree and defendant was convicted of that lesser offense, it cannot be said that defendant was denied meaningful representation as a result of defense counsel's strategic decision to request that charge (see generally People v. Henry, 95 N.Y.2d 563, 565-566, 721 N.Y.S.2d 577, 744 N.E.2d 112;  People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: