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Criminal Possession of a Weapon in the Third Degree Is Not a Lesser Inclusory Concurrent Count of Criminal Possession of a Weapon in the Second Degree

The Fourth Department determined that criminal possession of a weapon in the third degree is not a lesser inclusory concurrent count of criminal possession of a weapon in the second degree:

“[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 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’ ” … . 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. People v Puryear, 2015 NY Slip Op 00093, 4th Dept 1-2-15

 

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