Opinion
June 11, 1990
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the judgment is modified, on the law, by providing that the term of imprisonment imposed for the conviction of criminal possession of a weapon in the second degree under the seventeenth count of the indictment shall run concurrently with the terms of imprisonment imposed for the conviction of attempted murder in the first degree; as so modified, the judgment is affirmed.
The defendant's contention that the verdict sheet submitted to the jury was not proper is not preserved for appellate review since he failed to object to its submission (see, CPL 470.05; People v. Braithwaite, 154 A.D.2d 543; People v. Bey-Cruz, 152 A.D.2d 756; People v. Jusino, 152 A.D.2d 744; People v. Mathis, 150 A.D.2d 613; cf., People v. Nimmons, 72 N.Y.2d 830), and we decline to review it in the exercise of our interest of justice jurisdiction because of the overwhelming evidence of the defendant's guilt (cf., People v. Carballo, 158 A.D.2d 701; People v. Testaverde, 143 A.D.2d 208).
We also reject the defendant's arguments that the prosecutor's summation deprived him of a fair trial (see, People v. Galloway, 54 N.Y.2d 396, 399) and that the trial court erred in marshaling the evidence in its charge (see, People v. Culhane, 45 N.Y.2d 757, 758, cert denied 439 U.S. 1037; see also, People v. Holton, 160 A.D.2d 729; People v. Gray, 144 A.D.2d 483, 484; People v McCright, 107 A.D.2d 766, 767; People v. Little, 98 A.D.2d 752, 753, affd 62 N.Y.2d 1020).
We do however agree, and the People concede, that the defendant was improperly sentenced with respect to his conviction for criminal possession of a weapon in the second degree and amend the sentence accordingly (see, Penal Law § 70.25; People v Ellis, 139 A.D.2d 662; see also, People v. Underwood, 52 N.Y.2d 882; People v. Claudio, 130 A.D.2d 759, 760). Thompson, J.P., Kunzeman, Harwood and Miller, JJ., concur.