Opinion
June 1, 1993
Appeal from the Supreme Court, Queens County (Rotker, J.).
Ordered that the judgment, as amended, is modified, on the law, by reversing the convictions for criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree and dismissing those counts of the indictment; as so modified, the judgment, as amended, is affirmed.
The trial court's statements moments before the court decided to end the jury's deliberations for the day, which merely informed the jurors in an impartial and neutral manner that they would be sequestered for the evening and the time factors involved, did not constitute, under the circumstances present, an attempt to coerce or compel the jury to reach a prompt verdict (see, People v. Pagan, 45 N.Y.2d 725; People v. Sharff, 38 N.Y.2d 751, 753).
The defendant's contention with respect to inconsistent verdicts is not preserved for appellate review because it was not raised prior to the discharge of the jury, when any infirmity might be remedied by resubmission of its verdict to the jury for reconsideration (see, People v. Alfaro, 66 N.Y.2d 985; People v Satloff, 56 N.Y.2d 745; People v. Abi-Zeid, 178 A.D.2d 604; People v. Walker, 175 A.D.2d 146). In any event, the verdict was not inconsistent because the charged crimes involved different victims and did not contain identical elements (see, People v. Tucker, 55 N.Y.2d 1, 6; People v. Castro, 141 A.D.2d 658; People v. Crutchfield, 111 A.D.2d 346; People v Zuziela, 98 A.D.2d 161, 164-165).
As the People concede, the defendant is not criminally liable for the crimes of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree because he was 15 years old at the time of the crime (see, Penal Law § 30.00). Therefore, the guilty verdicts as to each of these counts are nullities and the counts are dismissed (see, CPL 310.85; People v. McDermott, 179 A.D.2d 685; People v. Ennis, 94 A.D.2d 746, 747; People v. Lester B., 84 A.D.2d 791, 792). Lawrence, J.P., O'Brien, Copertino and Santucci, JJ., concur.