Opinion
December 19, 1995
Appeal from the Supreme Court, New York County (Alfred Kleiman, J.).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility were properly presented to the court, as the trier of fact, and we see no reason to disturb its findings. Defendant's claim that the court erred in not informing him, before summations, of its intent to consider the lesser included offense of attempted criminal sale of a controlled substance in the fifth degree is unpreserved ( see, People v Trail, 172 A.D.2d 320, lv denied 78 N.Y.2d 975), and in any event is without merit.
Concur — Murphy, P.J., Rosenberger, Ross, Nardelli and Mazzarelli, JJ.