Opinion
September 23, 1993
Appeal from the Supreme Court, Bronx County (Bernard Jackson, J.).
Defendant's argument that the verdict is repugnant in convicting him of criminal trespass in the first degree while acquitting him of criminal possession of a weapon in the third degree is unpreserved for review as a matter of law, defendant having failed to object to the alleged repugnancy prior to the discharge of the jury (People v Gomez, 194 A.D.2d 490, and we decline to reach the issue. If we were to review the issue in the interest of justice, we would find no repugnancy.
Defendant's argument that he was improperly adjudicated a second violent felony offender is also unpreserved (see, People v Smith, 73 N.Y.2d 961), but we nevertheless review the issue in the interest of justice because of concededly erroneous assumptions by both sides concerning defendant's predicate crime of criminal possession of a weapon in the third degree under Penal Law § 265.02 (1). As defendant concedes, a remand for resentencing is not necessary since the sentence already imposed is within the limits of a second nonviolent felony offense.
Concur — Rosenberger, J.P., Asch, Kassal and Rubin, JJ.