People v. Palmer — 104 A.D.2d 912

Majority

p. 912

The People of the State of New York, Respondent, v Winston Palmer, Appellant.

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Lagaña, J.), rendered April 30,1982, convicting him of murder in the second degree, upon a jury verdict, and sentencing him to an indeterminate term of imprisonment of 25 years to life. Defendant was also sentenced to an indeterminate term of imprisonment of 5 to 15 years upon a charge of criminal possession of a weapon in the second degree, although the jury, pursuant to the court’s instructions, returned no verdict on that count.

Judgment modified, on the law, by vacating the sentence imposed on the charge of criminal possession of a weapon in the second degree. As so modified, judgment affirmed. No questions of fact have been raised or considered.

p. 913

Although a charge of criminal possession of a weapon in the second degree was submitted to the jury, no verdict was returned on this count pursuant to the court’s instructions not to consider this charge if they convicted defendant of murder in the second degree. As defendant was not convicted of the weapon count, the court committed error when it imposed a sentence for this offense.

We have considered those of defendant’s remaining contentions as were preserved for appellate review and have found them to be without merit. Titone, J. P., Bracken, Niehoff and Rubin, JJ., concur.