Opinion
October 12, 1995
Appeal from the Supreme Court, Bronx County (Steven Barrett, J.).
Since defendant failed to raise his contention that there was insufficient proof to establish that he intended to rob the victims in his motion to dismiss in the trial court, the issue has not been preserved for this Court's review as a matter of law (CPL 470.05; People v. Gray, 86 N.Y.2d 10). In any event, viewing the evidence in a light most favorable to the People ( People v. Contes, 60 N.Y.2d 620, 621), the proof was legally sufficient to establish his guilt of murder in the second degree. Upon an independent review of the facts, the verdict was not against the weight of the evidence ( People v. Bleakley, 69 N.Y.2d 490). The surviving victim properly testified as to his understanding of defendant's words and that they indicated to him that defendant wanted him to turn over his property. It was for the jury to determine the appropriate weight to be accorded to the victim's interpretation of these words. Defendant's statement and his act of pointing a gun in the victim's face constituted sufficient evidence to permit the jury to infer that he specifically intended to commit the crime of robbery ( see, People v. Bracey, 41 N.Y.2d 296).
Defendant's contention that the audiotape of the autopsy performed on one of the victims constituted Rosario material has not been preserved for this Court's review as a matter of law (CPL 470.05; People v. Rogelio, 79 N.Y.2d 843) and, in any event, has been rejected by the Court of Appeals ( People v Washington, 86 N.Y.2d 189).
We perceive no abuse of discretion in sentencing.
Concur — Rosenberger, J.P., Ellerin, Wallach and Tom, JJ.