Opinion
3709.
Decided May 25, 2004.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered December 19, 2001, convicting defendant, after a nonjury trial, of criminal sale of a controlled substance in the third degree and attempted assault in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years and 2 to 4 years, respectively, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Joseph Widman of counsel), for respondent.
Before: Nardelli, J.P., Andrias, Ellerin, Friedman, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490). Issues of credibility and identification were properly considered by the court and there is no basis for disturbing its determinations. The credible evidence established that defendant sold drugs to an undercover officer and then threw a bottle at another officer, who clearly identified himself as such, and who was attempting to arrest defendant for the drug sale.
Defendant's argument concerning the court's discharge of a sworn juror during an uncompleted jury selection became moot when defendant waived a jury trial. We find defendant's argument to be unavailing in any event.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.