
    The People of the State of New York, Respondent, v Dion Battey, Appellant.
    [774 NYS2d 398]
   Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered May 29, 2001, convicting him of unauthorized use of a vehicle in the third degree, upon a jury verdict, and convicting him of criminal possession of stolen property in the third degree and criminal possession of stolen property in the fourth degree, upon a separate jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court properly refused his request to charge the jury on unauthorized use of a vehicle in the third degree as a lesser-included offense of criminal possession of stolen property in the fourth degree (see Penal Law § 165.45 [5]). The defendant failed to establish his entitlement to the lesser-included offense charge, since it is theoretically possible to commit the crime of criminal possession of stolen property in the fourth degree without concomitantly committing the crime of unauthorized use of a vehicle in the third degree (see CPL 1.20 [37]; People v Glover, 57 NY2d 61, 63 [1982]).

The defendant’s remaining contentions either are unpreserved for appellate review or without merit. Ritter, J.P., Goldstein, H. Miller and Mastro, JJ., concur.  