        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1312
KA 10-02076
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HARASHA L. PURYEAR, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Patricia D.
Marks, J.), rendered July 7, 2010. The judgment convicted defendant,
upon a jury verdict, of criminal possession of a weapon in the second
degree and criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     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 [3]) and criminal possession of a weapon in
the third degree (§ 265.02 [1]). We reject defendant’s contention
that defense counsel was ineffective in failing to argue in support of
the motion to suppress the shotgun that the officer lacked probable
cause to search the vehicle in which it was found or that it was
improperly discovered and seized as a result of the officer’s use of a
flashlight. It is well settled that the “failure to make . . . [an]
argument that has little or no chance of success” does not constitute
ineffective assistance (People v Dashnaw, 37 AD3d 860, 863, lv denied
8 NY3d 945 [internal quotation marks omitted]).

     We also reject defendant’s contention that his conviction of
criminal possession of a weapon in the third degree (Penal Law §
265.02 [1]) should be reversed and that count dismissed on the ground
that it is a lesser inclusory concurrent count of criminal possession
of a weapon in the second degree (§ 265.03 [3]). “[A] comparative
examination of the statutes defining the two crimes, in the abstract”
(People v Glover, 57 NY2d 61, 64), demonstrates that it is possible to
commit criminal possession of a weapon in the second degree without by
the same conduct committing criminal possession of a weapon in the
third degree (compare § 265.02 [1] with § 265.03 [3]). For example, a
defendant in possession of a loaded gun outside of his or her home or
                                 -2-                          1312
                                                         KA 10-02076

business who had not previously been convicted of any crime would be
committing only the second-degree but not the third-degree offense.
Because it is possible to commit the greater offense without
committing the lesser one, the two counts are “ ‘non-inclusory
concurrent counts’ ” (People v Leon, 7 NY3d 109, 112, quoting CPL
300.30 [4]; see CPL 300.30 [3]). To the extent that the prior
decision of this Court in People v Wilkins (104 AD3d 1156, lv denied
21 NY3d 1011) was based on an incorrect concession by the People and
suggests a rule to the contrary, we conclude that Wilkins should no
longer be followed.

     Finally, viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
