People v. Cole

OPINION OF THE COURT

Anne G. Feldman, J.

A jury acquitted defendant of criminal possession of a weapon in the second degree (Penal Law § 265.03) and convicted him of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]).* The latter charge was submitted as a lesser included offense at the prosecutor’s request over defendant’s objection.

Defendant moves to set aside the verdict and dismiss the indictment pursuant to CPL 330.30 (1) on the grounds that criminal possession of a weapon in the third degree is not a lesser included offense of criminal possession of a weapon in…