Appeal by defendant from a judgment of the Criminal Court of the City of New York, Kings County (John Carter, J.), rendered February 10, 2004. The judgment convicted defendant, upon a jury verdict, of petit larceny and resisting arrest.

. Judgment of conviction unanimously modified on the law by vacating defendant's conviction of petit larceny and dismissing that count of the accusatory instrument; as so modified, affirmed.

In or about August 2003, defendant was charged with two counts of petit larceny (Penal Law § 155.25) and two counts of criminal possession of stolen property in the fifth degree (Penal Law § 165.40) for allegedly stealing merchandise from the Marshalls and Circuit City stores located in a Brooklyn mall. Defendant was also charged with resisting arrest at the Circuit City store (Penal Law § 205.30). Following deliberations, the jury convicted defendant of resisting arrest and of petit larceny only as to the Circuit City merchandise.

During its preliminary instructions, the court informed the jury, without objection by defendant, that it could pose questions during trial. Inasmuch as, at trial, defendant did not make the specific objection that the jurors' questions demonstrated that they were engaged in premature deliberations, said contention is unpreserved for appellate review (see People v Bacic, 202 AD2d 234 [1994]).

In view of the jury charge, we find that defendant could not have been found guilty of [*2]petit larceny with respect to the Circuit City merchandise without also having been found guilty of criminal possession of stolen property in the fifth degree as to said merchandise (see People v Tucker, 55 NY2d 1 [1981]). Due to the inconsistent verdicts, defendant's conviction of petit larceny cannot be sustained and that count of the accusatory instrument is dismissed.

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that the evidence adduced at trial was legally sufficient to establish defendant's guilt of resisting arrest beyond a reasonable doubt. [*3]
Moreover, upon the exercise of our factual review power, we are satisfied that said verdict was not against the weight of the evidence (see CPL 470.15 [5]).
Decision Date: September 16, 2005