Ordered that the judgment is modified, on the law, by vacating the conviction of murder in the second degree and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.
The defendant's conviction of depraved indifference murder ( see Penal Law § 125.25) must be vacated, as that count of the indictment had been dismissed by another judge prior to trial and was later mistakenly submitted to the jury by the trial judge ( see People v Shampine, 31 AD3d 1163, 1164; People v Romero, 309 AD2d 953, 954; People v Smiley, 303 AD2d 425, 426; People v Harris, 229 AD2d 595).
The defendant's contention that the evidence against him was legally insufficient to establish his guilt of criminal possession of a weapon in the second degree is unpreserved for appellate review ( see CPL 470.05; People v Daniels, 35 AD3d 495, 496). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes, 60 NY2d 620, 621 [1983]), the evidence as to this charge was legally sufficient to establish the defendant's guilt beyond a reasonable doubt ( see People v Daniels, supra; People v Edwards, 29 AD3d 818, 819).
The sentences imposed on the remaining counts of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and tampering with physical evidence were not excessive ( see People v Suitte, 90 AD2d 80).
In light of the foregoing, the defendant's remaining contentions regarding the conviction for depraved indifference murder have been rendered academic.