Opinion
June 4, 1985
Appeal from the Onondaga County Court, Burke, J.
Present — Dillon, P.J., Boomer, Green, Pine and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was charged with the crimes of murder in the second degree and criminal possession of a weapon in the third degree. The jury found defendant guilty of criminal possession of a weapon in the third degree and also of manslaughter in the second degree (recklessly causing death) as a lesser included offense of the murder charge. Defendant contends the verdict is repugnant since, by finding the defendant guilty of reckless manslaughter and not guilty of murder and manslaughter in the first degree, the jury determined that the defendant did not intend to use the weapon unlawfully. The verdict is not repugnant. Although the jury apparently found that defendant did not intend to use the weapon to kill or to cause serious physical injury, it could have found that he intended to use it to inflict physical injury, an unlawful use. Moreover, since defendant failed to raise this issue prior to the discharge of the jury, he did not preserve it for our review (see, People v. Bruckman, 46 N.Y.2d 1020, 1021; People v. McDavis, 97 A.D.2d 302, 305).
Defendant did not object to the prosecutor's remarks on summation and thus has failed to preserve that issue for review.
We have reviewed all of the other issues raised by defense counsel, as well as those raised by defendant in his supplemental pro se brief, and we find them to be without merit.