Opinion
April 5, 2001.
April 30, 2001.
Lynn W. L. Fahey, New York, N.Y. (Neil L. Fishman of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Michael Gore, and Matthew S. Greenberg of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, BARRY A. COZIER, JJ.
DECISION ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered March 12, 1999, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction of depraved indifference murder (see, Penal Law § 125.25) is not preserved for appellate review (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v. Peterson, 262 A.D.2d 502; People v. Arce, 242 A.D.2d 508; People v. Cole, 233 A.D.2d 247; People v. Tankleff, 199 A.D.2d 550, affd 84 N.Y.2d 992; People v. Marsh, 140 A.D.2d 631). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
Contrary to the defendant's contention in his supplemental pro se brief, the Supreme Court did not err in denying his untimely request for a missing witness charge (see, People v. St. Fleur, 243 A.D.2d 740).
The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80).