People v. Psilakis

• Decision Date: 06 March 1989
• Citation: 148 A.D.2d 475,538 N.Y.S.2d 623
• Parties: The PEOPLE, etc., Respondent, v. Manousos PSILAKIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 623

538 N.Y.S.2d 623

148 A.D.2d 475

The PEOPLE, etc., Respondent, v. Manousos PSILAKIS, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 6, 1989.

Bert H. Nisonoff, Forest Hills, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Gary Fidel, of counsel), for respondent.

Before MOLLEN, P.J., and THOMPSON, KUNZEMAN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Glass, J.), rendered December 18, 1987, convicting him of criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed, and the case is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50(5).

The People essentially concede that the trial court erred in convicting the defendant of criminal possession of a weapon in the third degree as a lesser included offense of criminal possession of a weapon in the second degree (see, People v. Okafore, 72 N.Y.2d 81, 89, n. 3, 531 N.Y.S.2d 762, 527 N.E.2d 245; People v. McGriff, 123 A.D.2d 646, 506 N.Y.S.2d 910). However, the defendant waived any objection to this error by focusing his argument on summation on the elements of the offense of criminal possession of a weapon in the third degree and characterizing it as a lesser included offense of criminal possession of a weapon in the second degree. Indeed, defense counsel conceded that the People had proved beyond a reasonable doubt that defendant's guilt of the "lesser included count" of criminal possession of a weapon in the third degree. Defense counsel retracted the concession only because he believed proof that the defendant did not possess a license to carry a handgun was necessary to sustain a conviction of the offense of criminal possession of a weapon in the third degree and such proof was lacking. Implicit in defense counsel's actions was the expectation that criminal possession of a weapon in the third degree would be considered by the trial court in rendering a verdict. Accordingly, the issue was not preserved for appellate review (see, People v. Shaffer, 66 N.Y.2d 663, 665, 495 N.Y.S.2d 965, 486 N.E.2d 823; People v. Ford, 62 N.Y.2d 275, 283, 476 N.Y.S.2d 783, 465 N.E.2d 322; People v. Zocchi, 133 A.D.2d 478, 519 N.Y.S.2d 690).

The defendant next contends that in order to sustain his conviction of criminal possession of a weapon in the third degree, the People had the burden of proving beyond a reasonable doubt that he was not licensed to carry a firearm and that they failed to carry their burden. The plain language of Penal Law § 265.20(a)(3) provides that section 265.02 of the Penal Law, under which the defendant stands convicted, does not apply to "[p]ossession of a pistol or revolver by a person...