People v. Bork

77 A.D.3d 1278, 907 N.Y.S.2d 907

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 2010
• Status: Published

Opinion

Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered May 9, 2007. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting her, following a jury trial, of murder in the second degree (Penal Law § 125.25 [1]), defendant contends that the evidence is legally insufficient to support the conviction. Defendant made only a general motion for a trial order of dismissal at the close of the People’s case and thus has failed to preserve her contention for our review (see People v Gray, 86 NY2d 10, 19 [1995]). Defendant also failed to preserve for our review her contention concerning the misstatement of County Court in its jury instructions concerning a date in the indictment (see People v Green, 35 AD3d 1211, 1212 [2006], lv denied 8 NY3d 985 [2007]), as well as her contention that she was denied a fair trial based on prosecutorial misconduct (see People v Clark, 281 AD2d 947, 947-948 [2001], lv denied 96 NY2d 860 [2001]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present—Scudder, P.J., Martoche, Peradotto, Green and Gorski, JJ.