Opinion
June 9, 1995
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Green, J.P., Lawton, Fallon, Callahan and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted of two counts of assault in the second degree (Penal Law § 120.05) and two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01). Defendant contends that the conviction of weapons possession should be vacated and those counts of the indictment dismissed as lesser included offenses of assault in the second degree (see, CPL 300.40 [b]). At the outset, we note that this issue is reviewable as a matter of law despite defendant's failure to preserve it (see, People v. Lee, 39 N.Y.2d 388; People v. Butler, 192 A.D.2d 543, lv denied 82 N.Y.2d 715). Criminal possession of a weapon is not a lesser included offense of assault (see, People v. Perez, 45 N.Y.2d 204; People v. Sykes, 194 A.D.2d 502, lv denied 82 N.Y.2d 759). The possession of a weapon constitutes an offense separate and distinct from its use. "[O]nce 'the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime'" (People v. Pons, 68 N.Y.2d 264, 266, quoting People v. Almodovar, 62 N.Y.2d 126, 130).
In light of the serious injuries sustained by the victim and defendant's criminal record, the sentence is neither unduly harsh nor severe.
We have examined defendant's other contentions and conclude that they are without merit.