People v. Cintron , 636 N.Y.S.2d 619 ( 1995 )

—Judgment, Supreme Court, New York County (Alfred Kleiman, J.), rendered March 2, 1994, convicting defendant, after a nonjury trial, of attempted criminal sale of a controlled substance in the fifth degree, and sentencing, him, as a second felony offender, to a term of l1/2 to 3 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility were properly presented to the court, as the trier of fact, and we see no reason to disturb its findings. Defendant’s claim that the court erred in not informing him, before summations, of its intent to consider the lesser included offense of attempted criminal sale of a controlled substance in the fifth degree is unpreserved (see, People v Trail, 172 AD2d 320, lv denied 78 NY2d 975), and in any event is without merit. Concur — Murphy, P. J., Rosenberger, Ross, Nardelli and Mazzarelli, JJ.