Opinion
February 27, 1997.
Judgment, Supreme Court, Bronx County (George Covington, J.), rendered May 20, 1994, convicting defendant, after a jury trial, of assault in the second degree, promoting prison contraband in the first degree, and criminal possession of a weapon in the fourth degree, and sentencing him, as a second felony offender, to concurrent prison terms of 31/2 to 7 years, 31/2 to 7 years, and 1 year, respectively, unanimously affirmed.
Before: Murphy, P.J., Sullivan, Rubin and Andrias, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury's credibility determinations. The sufficiency and weight of the evidence are not undermined by the jury's verdict of not guilty upon an additional count containing elements not present in the counts upon which defendant was convicted.
Defendant's claim that the court improperly requested the jury to prune its request for readback of testimony is unpreserved and we decline to review it in the interest of justice. Were we to review it, we would find that the court's remarks do not warrant reversal because they were balanced by a reminder to the jury that it could have the entire testimony read back if it wished. We note, however, that some portions of the court's remarks to the jury would have been better left unsaid.
Defendant's remaining contentions are unpreserved and without merit.