Opinion
April 8, 1996
Appeal from the Supreme Court, Queens County (Braun, J.).
Ordered that the judgment is modified, on the law, by deleting the provision thereof which directed that the sentence imposed on the defendant's conviction for criminal possession of a weapon in the third degree under the fourth count of the indictment shall run consecutively to the concurrent sentences imposed for murder in the second degree and criminal possession of a weapon in the second degree, and substituting therefor a provision providing that the sentence imposed on the defendant's conviction for criminal possession of a weapon in the third degree under the fourth count of the indictment shall run concurrently with the concurrent sentences imposed for murder in the second degree and criminal possession of a weapon in the second degree; as so modified, the judgment is affirmed.
The defendant's contention that the Supreme Court violated his constitutional right to a public trial when it excluded a potential witness from the courtroom, is not preserved for appellate review and we decline to address it in the exercise of our interest of justice jurisdiction ( see, CPL 470.05; People v. Lopez, 185 A.D.2d 189, 191).
Contrary to the defendant's claim, the Supreme Court did not err in failing to give a supplemental charge on the defense of justification in response to a jury note, and the court meaningfully responded to the jury request for a readback of the first two counts of the indictment and the law applicable to the first two counts of the indictment ( see, People v. Almodovar, 62 N.Y.2d 126, 131; People v. Malloy, 55 N.Y.2d 296, 301-302, cert denied 459 U.S. 847).
The sentence imposed on the defendant's conviction for criminal possession of a weapon in the third degree based on his possession of a .25 caliber weapon under the fourth count of the indictment is modified to run concurrently with the concurrent sentences imposed for his convictions for murder in the second degree and criminal possession of a weapon in the second degree under the first and third counts of the indictment, respectively. The first, third, and fourth counts of the indictment all related to the defendant's possession of the .25 caliber pistol. The defendant's possession of that weapon was a material element of the foregoing charges and was part of the same act of murder ( see, CPL 70.25 [2]; People v. Day, 73 N.Y.2d 208, 210; People v. Doczy, 210 A.D.2d 425; People v. Velez, 206 A.D.2d 554, 555; People v. Crespo, 188 A.D.2d 483, 484-485; People v Terry, 104 A.D.2d 572, 573). Thompson, J.P., Krausman, Friedmann and McGinity, JJ., concur.