
    The People of the State of New York, Respondent, v Steven LoCurto, Appellant.
    [628 NYS2d 626]
   Judgment, Supreme Court, New York County (Frederic Berman, J.), rendered June 29, 1987, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and sentencing him to a term of two to six years, unanimously affirmed. The matter is remanded to Supreme Court, New York County, for proceedings pursuant to CPL 460.50 (5).

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 NY2d 264; People v Almodovar, 62 NY2d 126; People v AbdulHakeem, 172 AD2d 177, lv denied 78 NY2d 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.  