         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
155
KA 08-01558
PRESENT: SMITH, J.P., CARNI, SCONIERS, GREEN, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

C.W. POOLE, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Stephen R. Sirkin, A.J.), rendered August 14, 2007. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree, criminal possession of a weapon in the
third degree and assault in the second degree (four counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the sentence imposed
on count two of the indictment shall run concurrently with the
sentences imposed on counts four and six of the indictment and as
modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, criminal possession of a weapon in
the second degree (Penal Law § 265.03 [3]). The conviction arises
from an altercation between defendant and two Rochester police
officers, during which defendant obtained one of the officers’ service
weapons and struck both of the officers with it, causing each of them
physical injury. Based on the record before us, we reject defendant’s
contention that Supreme Court erred in denying his request to charge
the defense of justification (see People v Stevenson, 31 NY2d 108,
112; People v Rison, 130 AD2d 596, lv denied 70 NY2d 654).

     We agree with defendant, however, that the sentence imposed for
criminal possession of a weapon in the second degree must run
concurrently with the sentences imposed for assault in the second
degree (Penal Law § 120.05 [former (2)]) under counts four and six of
the indictment inasmuch as the possession of the weapon by defendant
and his use of the weapon as a dangerous instrument against each
officer arose out of the same criminal act (see § 70.25 [2]; see
generally People v Cox, 256 AD2d 1244, lv denied 93 NY2d 923). We
therefore modify the judgment accordingly. The sentence, as modified,
                                 -2-                  155
                                                KA 08-01558

is not unduly harsh or severe.




Entered:   February 10, 2011           Patricia L. Morgan
                                       Clerk of the Court
