People v. Leon

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 *510establish 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 NY2d 869 [1995]; People v Bynum, 70 NY2d 858 [1987]; People v Carranza, 306 AD2d 351 [2003]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), 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 NY2d 264 [1986]; People v Steward, 213 AD2d 570 [1995]; People v Bumbury, 194 AD2d 735 [1993]; People v Gillespie, 168 AD2d 567 [1990]; People v Carrion, 136 AD2d 649 [1988]). 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 noninclusory concurrent count of criminal possession of a weapon in the third degree (see CPL 300.40 [3] [a]; [4]; People v Totten, 161 AD2d 678 [1990]; People v Weithers, 123 AD2d 456 [1986]), particularly after the prosecution consented that it not be submitted (see CPL 300.40 [6] [a]; People v Pozo, 261 AD2d 144 [1999]; People v Smith, 260 AD2d 253 [1999]; People v Pagano, 195 AD2d 487 [1993]; People v Tomas, 186 AD2d 55 [1992]).

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 NY2d 693 [1993]; People v Matthews, 1 AD3d 530 [2003]). In any event, it is without merit. The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contentions are unpreserved for appellate review and, in any event, without merit. Florio, J.E, S. Miller, Luciano and Mastro, JJ., concur.