
    The People of the State of New York, Respondent, v Earl Banks, Appellant.
   Upon remittitur from the Court of Appeals, judgment, Supreme Court, New York County (James Leff, J.), rendered June 27, 1985, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and sentencing him to an indeterminate term of incarceration of from 3 to 6 years, unanimously affirmed.

Defendant, charged with four counts of robbery, was acquitted of robbery but found guilty of criminal possession of a weapon in the third degree. On appeal, this court reversed the conviction and directed a new trial, one Justice dissenting, finding that the court erred in refusing to charge " 'temporary and lawful’ ” possession of the weapon. (See, People v Banks, 155 AD2d 347.) The Court of Appeals reversed and remitted to this court pursuant to CPL 470.40 (2) (b), finding that defendant’s claim that he had obtained the weapon during an altercation, had concealed it on his person, and had intended to bring the weapon to Queens in order to "throw it down a sewer” was inconsistent with a defense of temporary and lawful possession. (76 NY2d 799.)

We now affirm. As all of the evidence, including defendant’s trial testimony, indicates that defendant possessed a .38 caliber revolver, and since based upon defendant’s own testimony his possession of the weapon was unlawful, defendant’s conviction was supported by the weight of legally sufficient evidence. Concur—Kupferman, J. P., Carro, Rosenberger, Ellerin and Smith, JJ.  