While the prosecutor occasionally skirted the line of the Sandoval ruling, defendant was acquitted of almost all charges, and we discern no prejudice in connection with this conviction, especially since defendant admitted his possession of a loaded and operable unlicensed handgun.
Since it is inappropriate to submit a justification defense in connection with a possessory offense ( People v. Pons, 68 N.Y.2d 264; People v. Almodovar, 62 N.Y.2d 126; People v. AbdulHakeem, 172 A.D.2d 177, lv denied 78 N.Y.2d 960), we reject the present challenge to the submission of the defense for one, but not the other, possession count. Although the court initially misspoke in indicating prior to summations that the instruction would be submitted for both counts, we find no basis to reverse. Defendant did not adequately alert the court to the present claim prior to the charge being given and we reject the contention that counsel, in summation, otherwise might have focused more on another, not inconsistent, defense.
Finally, we do not find the sentence excessive.
Concur — Rosenberger, J.P., Ellerin, Ross, Williams and Tom, JJ.