People v. Brandon

Memorandum: 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 AD2d 96 [1983]). 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 AD2d 719 [2000]; People v Toribio, 216 AD2d 189 [1995], lv denied 87 NY2d 908 [1995]). In any event, that contention lacks merit inasmuch as defendant testified that he knew that there were bullets in the ammunition clip.

*1490Defendant 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 AD3d 562, 563 [2008]; People v Taylor, 226 AD2d 1101 [1996], lv denied 88 NY2d 1025 [1996], 89 NY2d 946 [1996]), 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. Present — Scudder, PJ., Martoche, Smith, Green and Gorski, JJ.