Opinion
January 17, 1995
Appeal from the Supreme Court, New York County (Frederic Berman, J.).
Viewing the evidence in a light most favorable to the People and giving due deference to the jury's findings on credibility (People v. Bleakley, 69 N.Y.2d 490, 495), proof of defendant's identity was established beyond a reasonable doubt and the verdict was not against the weight of the evidence.
Contrary to defendant's contention, there was no reasonable view of the evidence upon which the jury could have concluded that defendant had not displayed what appeared to be a handgun, without rejecting the complainant's testimony entirely, and thus no basis to submit a lesser included offense (CPL 300.50; see, People v. Glover, 57 N.Y.2d 61, 63).
Defendant's pro se challenge to the composition of the venire on constitutional grounds is not accompanied by any factually supported showing that a specific social group had been systematically excluded from jury selection and that the actual venire in this case was not a fair and reasonable representation of the community, and, thus he failed to carry his burden (Duren v. Missouri, 439 U.S. 357, 364; People v Guzman, 60 N.Y.2d 403, cert denied 466 U.S. 951).
We reject defendant's claim that the sentences imposed are excessive. However, since criminal possession of a weapon in the third degree (Penal Law § 265.02) is not defined as a violent felony offense (Penal Law § 70.02 [c]), the court erred in sentencing defendant as a persistent violent felony offender.
We have examined defendant's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Nardelli and Williams, JJ. [As amended by unpublished order entered Mar. 14, 1995.]