People v. Boyd

138 A.D.2d 386, 525 N.Y.S.2d 591, 1988 N.Y. App. Div. LEXIS 2135

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1988
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (West, J.), rendered June 16, 1986, convicting him of rape in the first degree, sodomy in the first degree, criminal use of a firearm in the first degree, attempted robbery in the first degree and attempted petit larceny, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that the evidence was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s contention that the trial court erred in failing to dismiss the count of robbery in the first degree based on the affirmative defense of Penal Law § 160.15 (4) is without merit. The defendant neither raised nor proved this affirmative defense at trial. The issue therefore is not preserved for appellate review (see, People v Hoke, 62 NY2d 1022; People v Dekle, 56 NY2d 835).

We have considered the defendant’s remaining contentions and find them to be without merit. Bracken, J. P., Weinstein, Rubin and Sullivan, JJ., concur.