Opinion
October 14, 1999
Judgment, Supreme Court, New York County (George Daniels, J.), rendered September 3, 1996, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the fourth degree, and sentencing her to concurrent prison terms of 6 months concurrent with a term of 5 years probation, unanimously affirmed.
The verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490). Issues of credibility were properly presented to the jury and we find no reason to disturb its determinations.
Having failed to object at any point during the court's charge, defendant's current claim that the court should have defined dangerous instrument in its instruction to the jury on criminal possession of a weapon in the fourth degree is unpreserved for appellate review (People v. Rivera, 171 A.D.2d 488,lv denied 78 N.Y.2d 973), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the definition was provided twice during the course of the court's charge to the jury and that the charge as a whole conveyed the proper legal standards.
Defendant's argument that the count of criminal possession of a weapon in the fourth degree should have been dismissed as a lesser included offense of assault in the second degree is also unpreserved (see, People v. Redd, 234 A.D.2d 127, lv denied 89 N.Y.2d 1040), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the possession of the weapon constituted an offense that was separate and distinct from its use (see, People v. Perez, 45 N.Y.2d 204; see also, People v. Sykes, 194 A.D.2d 502, lv denied 82 N.Y.2d 759).
ELLERIN, P.J., ROSENBERGER, TOM, LERNER, SAXE, JJ.