People v. Mabry , 151 A.D.2d 507 ( 1989 )

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered July 9, 1987, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contentions, criminal possession of a weapon in the third degree is not a lesser included offense of criminal possession of a weapon in the second degree. Thus, it was not error for the court to find him guilty on both counts and impose concurrent terms of imprisonment for both crimes (see, People v Okafore, 72 NY2d 81, 89, n 3; People v Ruiz, 144 AD2d 599; People v McGriff, 123 AD2d 646, Iv denied 69 NY2d 714; People v Weithers, 123 AD2d 456). To the extent that our decision in People v Jackson (140 AD2d 458) reached a contrary conclusion, it is hereby overruled.

Because the conviction of both crimes resulted from a single trial pursuant to one indictment and because concurrent sentences were imposed (see, Penal Law § 70.25 [2]), the defendant was not subjected to double jeopardy or double punishment (cf., Matter of Johnson v Morgenthau, 69 NY2d 148).

We further find that the sentencing court did not err by imposing a consecutive term of imprisonment upon his conviction of manslaughter in the first degree (see, Penal Law § 70.25 [2]; People v Robbins, 118 AD2d 820, Iv denied 67 NY2d 949). "Once the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime” (People v Almodovar, 62 NY2d 126, 130).

We have reviewed the defendant’s remaining contentions and find them to be without merit. Kunzeman, J. P., Rubin, Spatt and Balletta, JJ., concur.